ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003),
S.C. Code Ann. § 1-23-600(B) (Supp. 2003), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 &
Supp. 2003) for a contested case hearing. Petitioner The Spinx Company, Inc., seeks an off-premises
beer and wine permit for a Spinx convenience store to be located at 1305-A Highway 76 West in
Gray Court, South Carolina. Respondent South Carolina Department of Revenue (Department)
would have granted the permit but for the protests filed by several local residents regarding the
suitability of the proposed location for the convenience store. Accordingly, the Department was
excused from the hearing of this matter.
After timely notice to the parties and the protestants, a hearing of this case was held on
October 12, 2004, at the South Carolina Administrative Law Court in Columbia, South Carolina.
Based upon the testimony presented regarding the suitability of the proposed location and upon the
applicable law, I find that Petitioner’s application for an off-premises beer and wine permit should be
granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following Findings of Fact by a preponderance of the evidence:
1.On January 23, 2004, Stephen C. Spinks submitted an application on behalf of
Petitioner The Spinx Company, Inc., to the Department for an off-premises beer and wine permit for
a convenience store to be located at 1305-A Highway 76 West in Gray Court, South Carolina. This
application and the Department’s file on the application are hereby incorporated into the record by
reference.
2.The Spinx Company, Inc., is a South Carolina corporation, incorporated in 1972 and
currently in good standing with the South Carolina Secretary of State. The Spinx Company presently
operates over seventy convenience stores in South Carolina, all of which are permitted for the sale
of beer and wine. There is no evidence in the record to suggest that any of the principals of The
Spinx Company are under twenty-one years of age, owe any delinquent state or federal taxes, or have
engaged in acts or conduct implying the absence of good moral character. Further, while The Spinx
Company has had beer and wine permits held by it suspended on four occasions, it has not had any
of its beer and wine permits revoked during its thirty years of operating convenience stores.
3.Notice of Petitioner’s application was published in The Clinton Chronicle, a newspaper
published in Clinton, South Carolina, and circulated in Laurens County, South Carolina, once a week
for three consecutive weeks, and proper notice of the application was posted at the proposed location
for fifteen days.
4.The proposed location is situated at the intersection of Highway 76 and Highway 101
in a rural portion of Laurens County. There are several businesses and vacant commercial buildings
in the vicinity of the proposed location, including businesses located on the three other corners of the
intersection of Highways 76 and 101. Among the nearby businesses are two used car lots, a
barbershop, another convenience store, and a business known as Tim’s Amusement Company. There
are no churches or residences in immediate proximity to the proposed location other than a residence
behind the location, which is owned by the family who sold the property for the construction of the
convenience store. However, the Hickory Tavern Elementary School is located approximately 633
feet down Highway 101 from the proposed location.
5.Petitioner leases the property in question from the Enigma Corporation and plans to
construct a service station on the property consisting of a large convenience store with a restaurant,
banks of gas pumps in front of the building and in the rear of the building (for diesel fuel), a car wash,
and other amenities common to large service stations.
6.Protestant John McGill opposed Petitioner’s application for an off-premises beer and
wine permit primarily because of his concern that providing another outlet for the sale of alcoholic
beverages will be detrimental to the surrounding community and his concern that the placement of
the convenience store in relatively close proximity to an elementary school and a community ballfield
will have an adverse impact upon children in the community.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the South Carolina Administrative Law Court
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003), S.C. Code Ann. § 1-23-600(B) (Supp. 2003),
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003).
2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C.
Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see
also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.S.C. Code Ann. § 61-4-520 (Supp. 2003) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the proposed location be a
proper and suitable one. See id. § 61-4-520(6)-(7).
4.Although “proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness and suitability of a particular location for the requested permit.
See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5.The determination of suitability of location is not necessarily a function solely of
geography. Rather, 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.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6.However, without sufficient evidence of an adverse impact on the community, a permit
application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a
permit or license is protested is not a sufficient reason, by itself, to deny the application. See 48
C.J.S. Intoxicating Liquors § 119 (1981).
7.Further, the denial of a license or permit to an applicant on the ground of unsuitability
of location is without evidentiary support when relevant testimony of those opposing the requested
license or permit consists entirely of opinions, generalities, and conclusions not supported by the
facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972); see also, e.g., Southland Corp. v. City of Westminster City Council, 746 P.2d
1353, 1356 (Colo. Ct. App. 1987) (holding that the testimony of local school officials who objected
to the issuance of a beer license did not provide a basis for denying the license because their testimony
“was wholly speculative in nature, and was based exclusively on what ‘might’ occur if the license
were granted”).
8.In making a decision in this matter, this tribunal is constrained by the record before
it and the applicable statutory and case law. Here, Petitioner meets all of the statutory criteria
enacted by the South Carolina General Assembly for the issuance of a beer and wine permit, and there
has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner’s
convenience store or that the issuance of the permit would create problems in or have an adverse
impact upon the surrounding community. Petitioner’s convenience store, like other convenience
stores in the area, will only offer the sale of beer and wine for off-premises consumption, and thus will
not create the sort of problems associated with establishments that allow the consumption of alcohol
on the premises. Further, while the sale of beer and wine will be an important component of the
store’s business, such sales will not be the focus of the store’s operations; rather, the sale of beer and
wine at the location will only be conducted along with sales of gasoline, meals, and other convenience
store products. In short, there is no evidence in the record to suggest that, given the nature of
Petitioner’s proposed business, the sale of beer and wine at Petitioner’s convenience store will have
an adverse effect upon the surrounding community or will otherwise be out-of-keeping with the
character of that community. Therefore, while this tribunal is respectful of the protestant’s opposition
to the requested permit, the arguments proffered by the protestant do not constitute a sufficient basis
upon which to deny Petitioner’s application.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall GRANT Petitioner’s application for
an off-premises beer and wine permit for the premises located at 1305-A Highway 76 West in Gray
Court, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
November 4, 2004
Columbia, South Carolina |
