ORDERS:
FINAL ORDER
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 RAM, LLC, d/b/a Raceway (Raceway), seeks an off-premise beer and wine permit. The South Carolina Department of Revenue (Department) denied the permit based on the filing of a timely public protest by Pastor R. Scott Vaughn of the North Aiken Church of God. The Department indicated but for the timely filed public protest, the applicant has met the statutory requirements for the issuance of an off-premises beer and wine permit. A hearing was held before me on November 1, 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 Raceway, located at 2664 Columbia Highway North, Aiken, 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. Raceway is a convenience store located at the intersection of U.S. Highway 1 (Columbia Highway North) and the I-20 Frontage Road. This area is primarily commercial, with three other convenience stores, several restaurants, and a motel present nearby. The three other convenience stores currently have off-premises beer and wine permits. The convenience store at the proposed location has been in operation since 1993, selling beer and wine. The current leaseholder, Mr. Patel, has operated at the location since June, 2005, and is seeking a beer and wine permit for the location in his name.
5. The issuance of the permit is contested by Pastor R. Scott Vaughn, pastor of North Aiken Church of God. The Protestant’s church's entrance is approximately four tenths (4/10) of a mile from the proposed location. Pastor Vaughn is concerned because approximately seventy-five percent (75%) of his Congregation passes by the store on the way to church. Overall, Pastor Vaughn is concerned about the negative impact the sale of alcohol will have on the church and nearby residences. He is concerned for church members and community members as a whole. Pastor Vaughn is worried about people littering and driving under the influence of alcohol.
6. Pastor Vaughn'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.
__________________________________
JOHN D. MCLEOD
Administrative Law Judge
November 2, 2005
Columbia, South Carolina |
