ORDERS:
FINAL ORDER AND DECISION
Dorothy Inc., d/b/a Raceway #6754 (Raceway) filed an application for an off-premises beer and wine permit with the South Carolina Department of Revenue (DOR), for 1697 Boiling Springs Road, Boiling Springs, South Carolina. A protest was filed pursuant to S.C. Code Ann. § 61-4-525 by Reverend Wayne Dickard of Northbrook Baptist Church seeking to prevent DOR from granting the application. The Petitioner requested an expedited hearing due to the expiration of his temporary permit on August 11, 2005. I held a contested case hearing on this matter on August 18, 2005 at the Court in Columbia, South Carolina. Notice of the time, date, location, and nature of the hearing was timely sent, and the parties and protestant were present as noted. Raceway asserts it meets the statutory requirements for an off premises beer and wine permit. DOR states it would have granted the permit but for the filing of the protest asserting the location is improper. The sole issue in dispute is the suitability of the location. Based on the evidence and relevant factors before me, I find that the off-premises beer and wine permit should be granted.
FINDINGS OF FACT
Having observed testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, 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 parties as well as the Protestant in a timely manner.
2. The Petitioner seeks an off-premises beer and wine permit for the business
establishment known as Dorothy Inc., d/b/a Raceway #6754, located at 1697 Boiling Springs Road, Boiling Springs, South Carolina. Raceway is a convenience store that sells gasoline and miscellaneous grocery items. This location has been licensed previously.
3. The temporary permit granted to the Petitioner expired on August 11, 2005 and the Petitioner removed all beer and wine from his shelves.
4 The area of this location is heavily commercial. Boiling Springs Road is also S.C. Highway 9. There are at least five additional alcohol outlets in the immediate area, including on and off premises permits and sale and consumption (minibottle) licenses.
5. Notice of the application was lawfully posted for fifteen days at the location, and
notice of the application also ran in several newspapers of general circulation in the area. The Reverend Wayne Dickard of Northbrook Baptist Church timely filed his protest on April 28, 2005 asserting his opposition to the sale of alcoholic beverages. The church is located 776 feet from the proposed location.
6. The Department has indicated that the Petitioner met all statutory requirements relative to the application for an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 2004) and 23 S.C. Ann. Regs. 7-200 (2004), and that it would have issued the permit but for the protest.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 2004) grants jurisdiction to the South Carolina Administrative Law Court to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 2004) grants to the South Carolina Administrative Law Court the powers, duties and responsibilities to hear contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-4-520 (Supp. 2004) sets forth the requirements for issuance of beer and wine permits.
4. 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 a 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).
5. Any evidence adverse to a location may by considered. In evaluating the issuance of a beer and wine permit, the proximity of the location to a church, school or residence is a proper ground by itself on which the location may be found to be unsuitable and the permit denied. Byers v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge can consider whether there have been any law enforcement problems in the general area. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the judge can consider the proximity or the absence of other licensed locations in the immediate vicinity and the existence of students and small children in the area.
6. Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not 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).
7. 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). In this case, the Protestant testified that he was morally opposed to the sale of alcohol. He further noted that the church had been in this location for forty years and had recently experience tremendous growth. The church plans to expand so that only one lot would be between the church and this proposed location. He conceded the number of alcohol outlets in the area and the commercial nature of the community. He did not submit any specific facts to indicate that this location is unsuitable. An aversion to the sale 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).
8. Standards for judging the suitability of a proposed location for the sale of beer, wine or liquor are not determined by a local community’s religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, regulated by the State. See S.C. Code Ann. §61-4-10 et seq. (Supp. 2004) and 23 S.C. Ann. Regs. 7-200 et seq. (2004).
9. 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 off‑premises sale of beer and wine.
10. Although the concerns of the Church are understandable, and the witness exhibited great credibility in his opposition to the sale of beer and the possible temptations to some of the people involved in its missions, I find that the central concern is a general moral opposition, not directed to any specific problems with Petitioner’s location.
11. I conclude that the Petitioner’s burden of proof has been met by virtue of meeting
all of the statutory requirements for granting the off-premises beer and wine permit at the proposed location. I further conclude that the proposed location is proper for the permit.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the South Carolina Department of Revenue shall grant the off-premises beer and wine permit for Dorothy Inc., d/b/a Raceway #6754, located at 1697 Boiling Springs Road, Boiling Springs, South Carolina.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
August 25, 2005
Columbia, South Carolina |
