ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2005) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2005) for a contested case hearing. Petitioner Veena Georgia Road, LLC seeks an off-premise beer and wine permit. A hearing was held before me on December 6, 2006, at the offices of the Administrative Law Court (ALC or Court) in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of proof upon the parties and the Protestant, I make the following Findings of Fact by a preponderance of the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Protestant, and the Department.
2. Petitioner seeks an off-premise beer and wine permit for Veena Georgia Road, LLC, located at 1218 West Georgia Road, Simpsonville, South Carolina.
3. Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
4. Veena Georgia Road will be a gas station and convenience store located on the corner of West Georgia Road and Standing Springs Road in Simpsonville, South Carolina. The area is composed of residences and commercial businesses. The proposed location is zoned for commercial use and is consistent with the county’s master development plan to create a “village” concept. That concept entails creating a patch of commercially zoned land amid residences approximately every three (3) miles. Furthermore, there are at least five (5) other locations that sell alcohol within a three (3) mile radius of the proposed location.
5. The issuance of the permit is contested by the Reverend Michael Beeks, pastor of Standing Springs Baptist Church. The entrance to the Protestant’s church's is approximately three tenths (3/10) of a mile from the proposed location. It is located on the same street as the proposed location although the church cannot be seen from the property of the proposed location. The church has been in existence at this location for over one hundred and eighty (180) years. There is a child development center on the church premises which cares for about one hundred seventy five (175) children year round.
Pastor Beeks’ main objection to the issuance of this permit is the possibility of someone buying alcohol, consuming it on the premises of the proposed location and negatively impacting the children at the child development center. Pastor Beeks also set forth that he was concerned with the possibility of beer bottles being thrown onto the church property by customers of the Petitioner.
6. Pastor Beeks’ arguments appear to be based on a sincere concern for his church members and their surrounding community. However, in order to deny this permit, direct evidence of an adverse impact on the community is necessary. Though the evidence offered raises “potential” concerns that this business may change the integrity of the vicinity, the evidence did not establish that the granting of an off-premise permit for this location will have an overall adverse impact on the community. There also was no evidence of an existing criminal problem that could be exacerbated by granting the permit. However, if a significant change occurs as a result of Petitioner receiving this permit, the proposed location would no longer be suitable and the community and/or the Department could properly bring an action to prohibit the renewal of Petitioner’s permit. Therefore, I find that Petitioner’s proposed location is suitable for an off-premise beer and wine permit.
CONCLUSIONS OF LAW
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. 2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2005) grants the Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
2. S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2005) set forth the requirements for the issuance of a beer and wine permit.
3. Although "proper location" is not statutorily defined, the Administrative Law Court 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 118 (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 operation 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; Taylor v. Lewis, 261 S.C. 168.
“A liquor license or permit may also be properly 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). Nevertheless, 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).
4. Petitioner meets the statutory requirements for holding an off-premise beer and wine permit at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department resume processing Petitioner's application and issue an off-premise beer and wine permit to Petitioner upon payment of the proper fees and costs.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
December 7, 2006
Columbia, South Carolina |
