Spearman’s Super
Saver, Inc., (Spearman’s ) filed an application for an off-premises beer and
wine permit with the South Carolina Department of Revenue (DOR), for 8811
Augusta Road, Pelzer, South Carolina. A protest was filed pursuant to S.C. Code
Ann. § 61-4-525 by R.H. Patterson seeking to prevent DOR from granting the
application. The Petitioner requested an expedited hearing. I held a
contested case hearing on this matter on March 24, 2006 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. Spearman’s 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 inadequacy of law enforcement in
the area. The sole issue in dispute is the Protestant’s concern about law
enforcement. 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 the Protestant in a timely manner.
2. The Petitioner seeks an
off-premises beer and wine permit for the business
establishment known as Spearman’s
Super Saver, Inc., d/b/a Spearman’s located at 8811 Augusta Road, Pelzer, South
Carolina. Spearman’s is a convenience store, grill and restaurant. This
location has been licensed previously.
3. The area of this
location is primarily commercial with several commercial locations on the same
side of the four lane highway. The proposed location is currently open Monday
through Friday from 6:30 AM to 8:30 PM, Saturday 7:00AM to 8:00 PM and Sunday
8:00AM to 8:00 PM. Ms. Spearman testified that she may extend those hours, but
would not be open later than 9:30 PM. This location has parking for 10 cars
and adequate exterior lighting.
4. Notice
of the application was lawfully posted for fifteen days at the location, and
notice of the application also ran a
newspaper of general circulation in the area. R. H. Patterson timely filed his
protest on December 29, 2005 asserting his concern about the effect of the sale
of alcoholic beverages on local law enforcement and the number of licensed
location in the area.
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. 2005) and 23 S.C. Ann. Regs. 7-200 (2005), 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. 2005) 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. 2005) 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. 2005) 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 stated that the application
fees charged by the DOR are insufficient to pay for the necessary SLED and DOR
investigations of the location and the principals. In addition, he does not
believe that there is an adequate law enforcement presence in the area to
protect the citizens from the problems he feels are caused by alcohol,
including violent crime and drunken driving.
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. 2005) and 23
S.C. Ann. Regs. 7-200 et seq. (2005).
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. Neither did the local law
enforcement agencies. I find that this location is suitable for the off‑premises
sale of beer and wine.
10. Although the concerns of the Protestant
are understandable, and the witness exhibited great credibility in his testimony
and his research on the number of outlets in the area, the spending by SLED and
the DOR and the number of law enforcement calls, not all of the statistics
cited relate to this particular location as required.
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 Spearman’s Super Saver, Inc. located at 8811 Augusta Road, Pelzer,
South Carolina.
AND IT IS SO
ORDERED.
___________________________________
CAROLYN C.
MATTHEWS
Administrative
Law Judge
March 28, 2006
Columbia, South Carolina