ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) and S.C. Code Ann. §§ 1-23-310 et seq.
(Supp. 1999) for a hearing on the application of Petitioner Alan Sturkie (Petitioner). Petitioner seeks an off-premises beer
and wine permit for a convenience store and grill located at Route 2, Box 131, Gaston, South Carolina.
After timely notice to the parties and the protestant Pastor Billy Griffith (Protestant), a hearing was held on June 7, 2000, at
the Administrative Law Judge Division in Columbia, South Carolina. Protestant did not move to intervene as a party.
The issues considered at the hearing were: (1) Petitioner's eligibility to hold a beer and wine permit; (2) the suitability of the
proposed business location; and (3) the nature of the proposed business activity. The application for the off-premises beer
and wine permit is hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the
credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks an off-premises beer and wine permit for a convenience store located at Route 2, Box 131,
Gaston, South Carolina.
2. Petitioner has an option to purchase the building that houses the convenience store.
3. This location has been licensed with a beer and wine permit since 1978.
4. Petitioner is of good moral character. The State Law Enforcement Division completed a criminal background
investigation of Petitioner. The SLED report revealed no criminal violations, and the record before this tribunal does not
indicate that Petitioner has engaged in acts or conduct that imply the absence of good moral character.
5. Petitioner is at least twenty-one years of age, a U.S. citizen, and a citizen of the State of South Carolina.
Furthermore, Petitioner has maintained his principal residence in the State for at least thirty days prior to the date of making
application for an off-premises beer and wine permit.
6. Petitioner has not had a beer and wine permit or alcoholic beverage license revoked within two years of the
date of his application.
7. Notice of the application appeared in the Calhoun Times, 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.
8. The proposed location is approximately 225 feet away from Denny Memorial Church.
9. Pastor Griffith morally opposes the sale of beer and wine. Additionally, he feels that the location is too close
to the church.
10. The Department does not oppose Petitioner's application and would have issued the permit but for the
protest.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. section 61-2-260 (Supp. 1999) and Chapter 23 of Title 1 of the 1976 Code, as amended,
authorize the South Carolina Administrative Law Judge Division to hear this case.
2. S.C. Code Ann. section 61-4-520 (Supp. 1999) establishes the criteria for the issuance of a beer and wine
permit. Included in the criteria is the requirement that the proposed location be a suitable one.
3. Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law
Judge Division in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593,
281 S.E.2d 118 (1981).
4. As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the
proposed business location of an applicant for a permit to sell beer and wine using broad, but not unbridled discretion. See
Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. The determination of the suitability of a location is not necessarily a function of geography alone. It involves
an infinite variety of considerations related to the nature and operations 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); Schudel v. South
Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6. There was not a sufficient evidentiary showing that the proposed location is unsuitable or that the issuance of
an off-premises beer and wine permit would create problems, or have an adverse impact on the community. This location
has operated as a convenience store since 1978 under a beer and wine permit without any negative impact on the community.
Furthermore, while the proximity of residences, schools, playgrounds and churches to the proposed location may be
considered in the determination of suitability, such factors do not apply to locations licensed before April 21, 1986. S.C.
Code Ann. § 61-4-520(7). Since the proposed location has been licensed since 1978, its proximity to the church at issue
does not render it unsuitable.
7. The denial of a license or permit to an applicant on the ground of unsuitability of location is without
evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions,
generalities, and conclusions not supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt,
258 S.C. 504, 189 S.E.2d 301 (1972).
8. 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 the issuance of a permit or license is protested is not a sufficient reason by itself
to deny the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119
(1981).
9. Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance
of an off-premises beer and wine permit. In making a decision in this matter, this tribunal is constrained by the record before
it and the applicable statutory and case law. Although Pastor Griffith expressed concerns that the proposed location is too
close to the church to be permitted to sell beer and wine, he admitted that his objections were mainly rooted in his moral
objection to the sale of alcoholic beverages. Pastor Griffith conceded, however, that as the business is currently operated, it
is an asset to the community. This tribunal acknowledges Pastor Griffith's opposition to the issuance of the permit, as well
as his right to hold such sentiments. However, mere aversion to the sale of alcoholic beverages is not within the statutory
grounds for denial of a permit request. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). Therefore, the
arguments proffered by Protestant do not constitute a sufficient basis on which to deny Petitioner's request.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department of Revenue shall continue processing Petitioner's application for an off-premises beer and
wine permit for Route 2, Box 131, Gaston, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
June 13, 2000
Columbia, South Carolina |
