ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This matter is before me on an expedited basis at the request of the Petitioner with the consent
of the Respondent. Although this file was received by the ALJD on July 2, 2003 and assigned to me
on July 8, the hearing was expedited because the baseball season during which the Petitioner can
serve concessions begins in early June and ends in early August. Thus, the Petitioner would have no
remedy if the case were processed on the Court’s normal schedule.
This case comes before the Administrative Law Judge Division (Division) pursuant to S.C.
Code Ann. §61-4-520 (Supp. 2002) for a contested case hearing. The Petitioner seeks an on-premises
beer and wine permit for the location at 81 W. Park Dr., Spartanburg, South Carolina. This matter
is presently before the Division because of a protest by concerned citizens concerning the suitability
of the location. The Respondent moved to be excused since but for the protests it would have issued
the permit. This motion was denied. After notice to all parties and Protestants, an expedited hearing
was held on July 17, 2003, at the Division in Columbia, South Carolina. At the hearing, the parties
and Protestants listed above were present.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and
having closely passed upon their credibility, I make the following Findings of Fact by a preponderance
of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit for the location at 81 W.
Park Dr., Spartanburg, South Carolina. This location is a baseball field located in Duncan Park
Stadium, a park in the city of Spartanburg.
2. The Respondent, South Carolina Department of Revenue (Respondent or the
Department), determined that the location and the Petitioner met all statutory requirements. The
Applicant is a Maryland limited liability corporation which is registered with the South Carolina
Secretary of State’s office.
3.The Protestants were concerned that the location was unsuitable due to the proposed
location’s presence in a city park. They expressed concern about children and young adults in the
park and at the baseball games being exposed to alcohol. In addition, the Protestants expressed
concerns regarding drinking and driving in the area.
4. The principals appear to be of good moral character. The State Law Enforcement
Division’s criminal background investigation revealed no criminal violations either in South Carolina,
or in their home states.
5. The registered agent is at least twenty-one years of age, a U.S. citizen, and citizen of
the State of South Carolina, and has maintained his principal residence in the State for at least thirty
days prior to the application.
6. Notice of the application appeared in The Spartanburg Herald-Journal, a newspaper
of general circulation in the area of the proposed location, once a week for three consecutive weeks
and notice was posted at the proposed location for fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
1.The South Carolina Administrative Law Judge Division has jurisdiction over this
matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002).
2.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3.Although “proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of the proposed business location of an applicant
who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d
119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984) (beer and wine permit). The determination of suitability of a location is not necessarily
a function solely of geography. It involves an infinite variety of considerations related to the nature
and operation of the proposed business and its impact on the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 335 (1985).
4. Any evidence adverse to the location may be considered. The proximity of a
location to a church, school or residences is a proper ground by itself, on which the location may be
found to be unsuitable and a permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C. 243,
407 S.E.2d 653 (1991). Further, the court can consider whether "there have been law enforcement
problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
In this case, no evidence was offered showing that the location is not suitable or was not a proper
location, despite the Protestants’ claims to the contrary.
5. The City of Spartanburg did not protest this permit, not did the City or County Law
Enforcement agencies. There was no evidence of law enforcement problems in the area, including
any problems with drinking and driving. In addition, Mr. Bock testified that the Petitioner has had
no alcohol violations at the other nine ball parks which the Petitioner has served alcohol. The
Petitioner has been selling beer at baseball games for seven years with no violations.
6.It is also the fact finder’s responsibility to judge the demeanor and credibility of the
witnesses and determine the relevance and weight of any testimony offered. Protestant Mrs. Howard,
who tragically lost her husband in a drunken driving accident in 2002, was very credible in her
opposition to the permit. She was particularly concerned that intoxicated parents leaving the ballpark
would endanger their children by driving while intoxicated. She also expressed concern that people
would buy beer and allow underage or intoxicated people to drink it.
In addition, Mr. Campbell testified that he had worked with the American Legion baseball
program for many years, and was impressed with the opportunities for and the lessons that program
taught young men. Although he was glad that the Coastal Plain League provided similar
opportunities for young men who were too old to play Legion baseball, he did not feel that alcohol
was necessary for the fans at the stadium, and that its presence sent the wrong message to the youth.
Although both of these individuals were very passionate and articulate in their opposition, the fact
remains that the statute that this Court must consider speaks in terms of the suitability of the location
and the applicant only. There was no specific testimony or evidence presented by anyone that the
location at 81 West Park Drive, or the applicant Creative Concessions, LLC, was unsuitable.
7.S.C. Code Ann. § 61-4-520 (Supp. 2002), states that, “no permit authorizing the
sale of beer or wine may be issued unless: (1) The applicant, any partner or co-shareholder of the
applicant, and each agent, employee, and servant of the applicant to be employed on the licensed
premises are of good moral character.”
8.Without sufficient evidence of an adverse impact on the community, the application
must not be denied if the statutory criteria are satisfied. The fact that a Protestant objects to the
issuance of a permit is not a sufficient reason alone to deny the application. 48 C.J.S. Intoxicating
Liquors § 119 (1981).
9.S.C. Code Ann. § 61-4-525 (Supp. 2002) provides that a person residing in the county
in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles
of the location, may protest the issuance of the permit if he files a timely written protest.
10.Permits and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State, and are to be used and enjoyed
only so long as the holder complies with the restrictions and conditions governing them. The
Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise
place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax
Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
11.After considering all the relevant factors, pleadings, evidence and witnesses before me,
I find that the location is suitable for the on-premises sale of beer and wine.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue GRANT the Petitioner’s
application for an on-premises beer and wine permit.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 13, 2004
Columbia, South Carolina |