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. 2004) and S.C. Code Ann. §§
1-23-310 et seq. (Supp. 2004) for a contested case hearing.
Petitioner KC Mart #3 (KC Mart) seeks an off-premise beer and wine permit. Prior
to the hearing into this matter, Respondent South Carolina Department of
Revenue (Department) filed a Motion to be Excused setting forth that but for
the protest of the Protestant, this permit would have been issued. That Motion
was granted by my Order dated June 2, 2005. A hearing was held before me on June
23, 2005, 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 KC Mart, located at 1625 Holly Springs Road, Lyman, South Carolina.
3. The
qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2004)
concerning the residency and age of Petitioner are properly established.
Furthermore, 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. KC
Mart is a convenience store located outside the municipal limits in Spartanburg County, South Carolina. This store is situated at the intersection of
Highway 357 and Highway 358, with entrances fronting on both highways. This
area has both commercial activity and residences. The convenience store has
been in operation for approximately four (4) months and has not experienced any
problems. The hours of operation for the location are: 6:00 a.m. until 9:00
p.m., Monday thru Saturday; and 9:00 a.m. until 8:00 p.m. on Sunday.
5. The
issuance of the permit is contested by the Reverend Steve Durham, pastor of Friendship Baptist Church. The Protestant’s church's entrance is approximately five
hundred (500) feet from the proposed location. It is located on the same
street as the proposed location and the side of the church faces the
convenience store at a distance. Also, a cyclone fence runs along that side of
KC Mart that the church faces. The church has been in existence at this
location for over one hundred (100) years.
Pastor
Durham's main objection to the issuance of this permit is the possible
interaction the members of his congregation may have with individuals purchasing
alcohol from the location, especially the impressionable younger members.
Pastor Durham also set forth that this is a heavily traveled area with a busy
intersection. However, no direct evidence was introduced to substantiate that
this intersection is particularly more dangerous than any other. Overall,
Pastor Durham is concerned about the negative impact the sale of alcohol will
have on the church and nearby residences.
6. Pastor Durham's 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. 2004) 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. 2004) 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. 2004) 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, supra; Taylor v.
Lewis, supra.
“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
June 28, 2005
Columbia, South Carolina |
