ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Judge Division (“Division”)
pursuant to S.C. Code Ann. § 61-4-520 (Supp. 2002), and upon the request of the Petitioner for the
application of an off-premises beer & wine permit. The proposed location is known as Dixon
Shopping Plaza located at 1290 N. Kings Highway, Sumter, South Carolina.
The South Carolina Department of Revenue (“Department”) filed a Motion to be Excused,
stating that the Department would have renewed the permit but for the protest of the application.
The Department’s Motion was not granted, and the Department appeared at the hearing.
There were two people who filed a protest with the Department, John and Gabriela Prosser.
Mr. John Prosser did not attend the hearing, and therefore his protest is deemed abandoned. Mrs.
Prosser did attend the hearing.
A hearing was held before the undersigned at the offices of the Division in Columbia, South
Carolina on February 27, 2003. Notice of the time, date, location, and nature of the hearing was
timely sent to all parties, as well as the Protestants.
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 Protestants in a timely manner.2.The Petitioner seeks the approval of an application for an off-premises beer and wine
permit for the business establishment known as Dixon Shopping Plaza located at 1290 N. Kings
Highway, Sumter, South Carolina.
3. Dixon Shopping Plaza is a convenience store that sells gasoline and miscellaneous
grocery items. This location has been in operation since September 2002. Mr. Dixon started
construction on the store in December 2001, and applied for a business license in January 2002. Prior
to construction of the store, the land was vacant, and the area is primarily agricultural.
4.Mr. Dixon testified that he has run a convenience store on Cotton Acres Road in
Sumter for several years, and has experience in the business. He stated that he has only heard
positive comments about Dixon Shopping Plaza and will not tolerate loitering on this property.
5.Mr. Henry Jackson, a thirty-year resident of Sumter, testified that there are no other
convenience stores close to the area, and that Dixon Shopping Plaza is a very clean, well-run store.
6. Mr. Kevin Brittain, manager of Dixon Shopping Plaza testified that the store is open
from 6:00 AM to 10:00 or 11:00 PM, seven days a week. He stated that people come in every day
asking if Dixon Shopping Plaza sells beer and wine.
4. Mr. and Mrs. Prosser filed a Protest in this action. The Prossers live behind the
location. Mrs. Prosser contends there are many problems with the location, primarily due to the fact
that the area is residential and agricultural. The Prossers have had to construct a privacy fence, and
no longer feel safe in their home. Mrs. Prosser contends that they cannot sell their home because of
the proximity of the store.
5.The Department has indicated that the Petitioner met all statutory requirements for
an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 2002) and 23
S.C. Ann. Regs. 7-90 (1976) 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. 2002) grants jurisdiction to the South Carolina
Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2002) grants to the South Carolina Administrative Law Judge Division the powers, duties and responsibilities to hear contested matters
governing alcoholic beverages, beer and wine.
3.S.C. Code Ann. § 61-4-520 (Supp. 2002) 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’s
complaints that she cannot sell her house are unfounded, since Mr. Dixon has offered to buy the
house.
8. Criteria for approving the sale of beer, wine or liquor 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.
9. I conclude that the Petitioner’s burden of proof has been met by virtue of meeting
all of the statutory requirements for the application of an 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 issue the off-premises beer
and wine permit for Dixon Shopping Plaza located at 1290 N. Kings Highway, Sumter, South
Carolina.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
May 22, 2003
Columbia, South Carolina |
