BIJAL, Inc., d/b/a
Lucky’s Supermarket (Lucky’s Supermarket) filed an application for an
off-premises beer and wine permit with the South Carolina Department of Revenue
(DOR), for 613 Musgrove Street, Clinton, South Carolina. A protest was filed
pursuant to S.C. Code Ann. § 61-4-525 by Pastor Kenny Moore of Davidson Street
Baptist Church seeking to prevent DOR from granting the application. I held a
contested case hearing on this matter on November 30, 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. Lucky’s Supermarket 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
parties stipulated that all statutory and regulatory requirements have been met
concerning the applicant. 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.
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 all Protestant in a timely manner.
2. The Petitioner seeks an
off-premises beer and wine permit for the business
establishment known as BIJAL, Inc.,
d/b/a Lucky’s Supermarket, located at 613 Musgrove Street, Clinton, South
Carolina. Lucky’s Supermarket is a grocery store. This location had been
licensed previously for off premises consumption.
3. This location is in a
mixed neighborhood of both commercial establishments and residential areas. There
is a park nearby and Davidson Street Baptist Church is 4/10 of a
mile away.
4. Notice
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. Pastor Kenny Moore of
Davidson Street Baptist Church timely filed his protest, which the DOR received
on May 25, 2005. Pastor Moore asserted his opposition to this location based
on his concerns about traffic and safety.
5. 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 be 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 while he
appreciated the presence of the grocery store, that his congregation would not
support this business if it chose to sell alcohol. He is concerned about the
amount of traffic in the neighborhood, the number of DUI arrests in the small
town of Clinton, and the proximity of this location to the city park and the
Presbyterian Home which houses a sizeable elderly population. He did not,
however, submit any specific facts to indicate that this particular 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 concerns for the safety of his community, I find that the
central concern is a general moral opposition, not directed to any specific
problems with Petitioner’s location. In addition, his concerns about law
enforcement problems, while admirable, are primarily conjectural and not
related to this specific 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 BIJAL, Inc., d/b/a Lucky’s Supermarket, located at 613 Musgrove
Street, Clinton, South Carolina.
AND IT IS SO
ORDERED.
_______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
December 19,
2005
Columbia, South
Carolina
