SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2000), § 61-4-520 (Supp. 2000), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2000) for a contested case hearing. Sherrill H. Stepp is the president of Buddy's Pizza & Subs, Inc., and seeks an on-premise beer and wine permit for the establishment. On February 9, 2001, Respondent Department of Revenue (Department) made a Motion to be Excused stating that but for the protests of concerned citizens, the Department would have found this location to be suitable. This motion was granted by my Order dated April 3, 2001. A hearing was held in this matter on May 17, 2001, at the offices of the Administrative Law Judge Division in Columbia, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and the Protestant(s), I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Department, and the Protestant(s).

2. Buddy's Pizza and Subs (Buddy's Pizza) seeks an on-premise beer and wine permit for its location in Lexington County at 714 Pine Street, Pelion, South Carolina. Ms. Stepp and her husband have operated Buddy's Pizza at that location for 15 years. If granted the permit, they would continue to be open for breakfast, lunch and dinner, closing at 9:00 p.m.

3. The location is a family restaurant with table service by wait staff. The Petitioner seeks to serve beer and wine to the patrons eating in the establishment. There will be no bar in the location.

4. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2000) concerning the residency and age of the Petitioner are properly established. Furthermore, Ms. Stepp has not had a permit or license revoked within the last two years and public notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

5. Ms. Stepp has no criminal record and is of sufficient moral character to receive a beer and wine permit. Additionally, the location has not had any complaints from local law enforcement in the past.

6. The proposed location is not unreasonably close to any church, school or playground.

7. The Protestant contends that this location is not suitable because it is approximately

300 feet from the Pelion Baptist Church of which he is the pastor. Also, it is approximately ½ mile from an elementary school and ¼ mile from a middle school. Reverend Ludwick admits that he is protesting on behalf of his church which has a moral opposition to alcoholic beverages. He knows the Stepps and admits they have a fine reputation. ⁽¹⁾ He has no reason to believe they would not be good stewards of a beer and wine permit.

8. The Protestant does not provide any evidence that the permitting of this

establishment with an on-premise beer and wine permit would be detrimental to the community. Therefore, I find the proposed location to be suitable for an on-premise beer and wine permit.

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2000) sets forth the requirements for the issuance of a beer and wine permit.

4. Although "proper location" is not statutorily defined, the Administrative Law Judge Division is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 181 (1981). The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E. 2d 476 (Ct. App. 1984). It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E. 2d 801 (1973). Furthermore, in considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301, (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E. 2d 801 (1973).

5. "A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).

6. 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 by itself to deny the application. See 45 Am.Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors §119 (1981). I conclude that this proposed location would not adversely impact this community.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the on-premise beer and wine permit application of Buddy's Pizza and Subs be granted upon the Petitioner's payment of the required fees and costs.

AND IT IS SO ORDERED.

____________________________

Ralph King Anderson III

Administrative Law Judge

May 29, 2001

Columbia, South Carolina

1. The Stepps have lived in the community for 22 years. They currently have two children attending the local high school and Mr. Stepp is the principal of the local middle school.