ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310
et seq. upon an application for an on-premises beer and wine permit and minibottle licence for 2307
N. Fraser Street, Georgetown, South Carolina. A hearing was requested by the applicant upon the
receipt by DOR of a written protest. A hearing was held on May 4, 1994, in accordance with the
Administrative Procedures Act with notice to all parties and protestants. The issues considered were
the applicant's eligibility to hold a license/permit; the suitability of the proposed business location;
and, the nature of the proposed business activity. The applications for a beer and wine permit and
minibottle license are granted.
FINDINGS OF FACT
The applicant seeks an on-premises beer and wine permit and minibottle license for a location
at 2307 N. Fraser Street, Georgetown, South Carolina, having filed applications with DOR, AI no.
97144 and AI 97145, on January 3, 1994. The applicant plans to operate the business bona fide
engaged primarily and substantially in the preparation and serving of meals as a restaurant. The
location was formerly a restaurant which held a beer and wine permit and minibottle license.
The applicant has worked in the restaurant business for twelve years at four restaurants. She
has held two previous licenses, without any problems with the police or the ABC Commission.
The intended hours of operation are 11:30 a.m.-2:30 p.m., everyday; 5:00 p.m.-9:00 p.m.,
Monday-Thursday; and 5:00 p.m.-10:00 p.m., weekends.
The proposed location is on U.S. Highway 701, a four lane highway connecting Conway and
Georgetown, in an unincorporated area with mixed commercial and residential dwellings. I find no
evidence that the location is within five hundred feet of a church, school, or playground.
Rev. Mark Pinkerton, pastor of Lakewood Baptist Church, located .2 miles from the proposed
location, testified in protest to the applications. He expressed concern over the service of alcohol in
an area in which possibly intoxicated patrons leaving the location may endanger persons at or near
a roller rink, ballfield, and neighborhood in close proximity. I find while those concerns are sincere,
they are speculative and lack sufficient evidence to support the likelihood of their occurrence.
Mr. Clifton Hardee, a resident of the area, also testified in opposition to the applications. He
did testify, however, that he had experienced no problems with the former permittee/licensee at the
same location.
Notice of the time, date, place, and subject matter of the hearing was given to the applicant,
protestants, SLED, and DOR. The DOR file was made a part of this record by reference by consent
of the parties and protestants. I find that the applicant is over twenty-one years of age, is a citizen
of the State of South Carolina, and has maintained his principal residence in South Carolina for more
than one year. The applicant has not had a permit/license revoked in the last five years. The applicant
and her manager, are of good moral character. Notice of the application appeared in a newspaper
of general circulation in the area of the proposed location for three consecutive weeks and was posted
at the proposed location for fifteen days.
Accordingly, I find the proposed location and business activity are suitable and proper and
the issuance of a beer and wine permit and minibottle license would not have an adverse effect on the
surrounding community.
CONCLUSIONS OF LAW
S.C. Code §61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge
Division is empowered to hear all cases previously heard by the now defunct Alcoholic Beverage
Control Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.
S.C. Code §61-9-320 (Supp. 1993) provides the criteria to be met by an applicant for a beer
and wine permit in South Carolina.
S.C. Code §§61-5-50 and 61-3-440 (Supp. 1993) set forth the requirements for a minibottle
license.
A permit or license must not be issued if an applicant does not meet the standards of S.C.
Code §61-3-730 (Supp. 1993).
The factual determination of whether or not an application is granted or denied is usually the
sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC
Commission, 317 S.E.2d 476 (S.C. App. 1984). As the trier of fact, an administrative law judge is
authorized to determine the fitness or suitability of the proposed business location of an applicant for
a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC
Commission, 316 S.E.2d 705 (S.C. App. 1984). It is also the fact finder's responsibility to judge the
demeanor and credibility of witnesses and determine the relevance and weight of any testimony and
evidence offered.
In determining whether a proposed location is suitable 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. William G. Byers
v. S.C. ABC Commission, ___ S.C. ___, 407 S.E.2d 653 (1991). The determination is not
necessarily a function solely of geography, however. It may involve 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).
S.C. Code §61-9-340 (Supp. 1993) states that upon a determination that an applicant meets
the criteria set forth above and has not misstated or concealed a fact in the application, DOR must
issue the permit after payment of the prescribed fee.
I conclude that the applicant has carried her burden of proof in establishing that she
meets the requisite standards for issuance of the permit and license applied for.
IT IS THEREFORE ORDERED that DOR issue to the applicant an on-premises beer and
wine permit and minibottle license upon payment of the prescribed fees.
___________________________
STEPHEN P. BATES
Administrative Law Judge
May 24, 1994
Columbia, South Carolina |