ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C.
Code Ann. §61-4-520 (Supp.2001) for a contested case hearing. The Petitioner seeks an on-premises
beer and wine permit and sale and consumption (mini-bottle) license for the location at 101 S. Main
Street, Abbeville, South Carolina. This matter is presently before the Division because of a protest
by a concerned citizen regarding the suitability of the location. The Respondent moved to be
excused, since but for the protest they would have issued the permit and license. This motion was
denied. After notice to the parties and Protestant, a hearing was conducted on March 21, 2003, at
the Division in Columbia, South Carolina. At the hearing, the parties and Protestant were present.
The attorney of record for the Petitioner, Mr. R. Eugene Pruitt, Jr. was not present.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and
having closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit and mini-bottle license
for the location known as Past Times On The Corner, located at 101 S. Main Street, Abbeville,
South Carolina. This location is currently a restaurant, and the Petitioner seeks to offer his
customers the option of having beer, wine or mixed drinks with their meals.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements and would have granted the permit but for
the protest as to suitability of the location.
3. The location is in the downtown area of Abbeville in a commercial district. There
are churches in the area, but not within the statutory proximity.
4. A minister of a church near the proposed location opposed the permit. He is
concerned about the harm that beer and wine could cause in the community, and about the potential
increase in accidents caused by driving under the influence of alcohol.
5. The applicant is of good moral character. The State Law Enforcement Division’s
criminal background investigation revealed no criminal violations.
6. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained his principal residence in the State for at least thirty
days prior to the application.
7. Notice of the application appeared in The Press and Banner, a newspaper
of general circulation in the area of the proposed location, once a week for three consecutive weeks
and notice was posted at the proposed location for fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1.The South Carolina Administrative Law Judge Division has jurisdiction over this
matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001).
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.Although “proper location” is not statutorily defined, broad discretion is vested in
the trier of fact to determine the fitness or suitability of the proposed business location of an
applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593,
281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d
705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm’n, 276 S.C.
138, 276 S.E.2d 308 (1981) (sale and consumption license).
4.It is also the fact finder’s responsibility to judge the demeanor and credibility of the
witnesses and determine the relevance and weight of any testimony offered.
5.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 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. Byers v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further,
the Judge may consider whether there have been law enforcement problems in the area. Palmer
v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge
may consider the proximity or the absence of other licensed locations in the immediate vicinity, as
well as the existence of small children in the area.
6.In considering the suitability of a location, it is relevant to consider the previous
history of the proposed location and to determine whether the testimony in opposition to a permit
consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973).
7.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 alone to deny the application. 48 C.J.S. Intoxicating
Liquors § 119 (1981).
8.S.C. Code Ann. § 61-4-525 (Supp. 2001) provides that a person residing in the county
in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles
of the location, may protest the issuance of the permit if he files a written protest.
9.Permits and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina
Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10.After considering all the relevant factors, I find that the restaurant’s location is
suitable for the on-premises sale of beer and wine and sale and consumption (minibottle) license.
There is nothing to indicate that the Petitioner would operate his business in an unlawful manner.
Further, the church is located at such a distance that it is unlikely having a restaurant at the proposed
location would have a negative impact on the community.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner’s
application for an on-premises beer and wine permit and sale and consumption (minibottle) license.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 3, 2003
Columbia, South Carolina |