ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code
Ann. §61-2-90 (Supp. 2003) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2003) for
a contested case hearing. The Petitioners, David Smoak and William Griffiths, are the owners of
a convenience store and restaurant, The Original Talking Horse. They seek an on- and off-premises beer and wine permit for the establishment. The Department of Revenue (Department)
stated that but for the protests received, this permit would have been issued. A hearing on the
merits of this case was held on January 10, 2005, at the offices of the Court in Columbia, South
Carolina. Notice of the time, date, place, and subject matter of the hearing was provided to all
parties and protestants at least thirty (30) days prior to the hearing date. The parties and
protestants were present as indicated above.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing in
this matter and closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioners seek an on- and off-premises beer and wine permit for the
establishment known as The Original Talking Horse, located at 4405 Cannon Bridge Road,
Cope, South Carolina.
1.2Notice of the application was lawfully posted for fifteen days at the location, and
notice of the application also ran in a newspaper of general circulation in the area.
3. Petitioners are legal residents of the State of South Carolina.
4. The Petitioners have no criminal records and are of sufficient moral character to
receive a beer and wine permit.
5. The location has been permitted previously for the sale of beer and wine by Mr.
Smoak in 1998. He had no violations at the location. Petitioners run a family oriented store and
restaurant. The store portion of the location can be closed off from the restaurant portion so that
patrons of the restaurant may leave by an exterior door without having to go through the store.
The proposed hours are 7:00AM to 8 PM Monday through Saturday and 9 AM to 5 PM on
Sunday. There are approximately 75 parking spaces at the location and seating for
approximately 15 to 20 people. In addition, the Petitioners plan to offer the area in the back of
the store for rent and for cookouts. The convenience store portion of the location sells hunting
and fishing supplies, groceries and take-out food.
6. The Protestants all feel that the store and restaurant do not need to sell beer and
wine for on-premises consumption; they stated that they have no objection to the off-premises
sale of alcohol, but do not feel that the on-premises sale is necessary. They are concerned for the
safety of the people in their small community, and the fact that the proposed location is between
the volunteer fire station and the homes of twenty-five of the twenty-six responders. The fire
chief, Mr. Metts, and a volunteer fire firefighter, Mrs. Metts, are concerned about the safety of
the responders as well as the safety of the patrons of the Talking Horse.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Court has jurisdiction in this matter
pursuant to S.C. Code Ann. §61-2-260 (Supp. 2003).
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. The applicant has complied with all the provisions of S.C. Code Ann. §61-4-520
regarding application conditions. The only remaining issue is the suitability of the location
pursuant to S.C. Code Ann. § 61-4-520(6) and (7).
4.Licenses and permits issued by the State for the sale of beer, wine, and liquor are
not rights or property, but are rather privileges granted in the exercise of the police power of the
State to be used and enjoyed only so long as the restrictions and conditions governing them are
complied with. As the tribunal authorized to grant the issuance of a license is also authorized,
for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on
the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
5.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).
6.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 beer and wine permit
using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). 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.
7.Although “proper location” is not statutorily defined, broad discretion is vested in
the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v.
Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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.2d 335 (1985). 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 upon which the location may be found to be
unsuitable and a license denied. Byers v. S. C. 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).
8.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, 261 S.C. 168, 198 S.E.2d 801 (1973).
9.Much of the Protestants’ arguments against the granting of the license sought
herein is that they do not want this type of business, i.e., a business that serves beer for on-premises consumption, in their community. However, an aversion to the sale and consumption
of alcoholic beverages is not within the statutory grounds for denial of an application. See 48
C.J.S. Intoxicating Liquors Sections 118, 119, 121 (1981).
10. The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer
and wine, did not object to the granting of a permit in this case. I find that this location is
suitable for the on- and off-premises sale of beer and wine.
12.Although the concerns of the Protestants are understandable, and the witnesses
exhibited great credibility in their opposition to the consumption of beer at this location and the
possible effects on the community, I find that the central concerns are general moral opposition,
and not directed to any specific problems with Petitioners’ location. I find that this
location shall be permitted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioners’ application for an on- and off-premises beer and wine
permit is GRANTED upon payment of any required fees and costs by the Petitioners to the
Department.
IT IS FURTHER ORDERED that the Department of Revenue issue an on- and off-premises beer and wine permit to the Petitioners.
AND IT IS SO ORDERED.
__________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 12, 2005
Columbia, South Carolina |
