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. 1998) and 23 S.C. Ann. Regs. 7-90 (1976) upon the request of the Petitioner for an off-premises beer & wine permit. The
proposed location is known as Kountry Kubbard, located at 3912 Maidendown Road, Marion, South
Carolina 29571.
The South Carolina Department of Revenue ("Department") filed a Motion to be Excused, stating that the Department would have
granted the permit but for the protests of the application. This Motion was not granted.
A hearing was held before the undersigned at the Division, at 1205 Pendleton Street, Suite 224, Columbia, South Carolina on October
25, 2000. Notice of the time, date, location, and nature of the hearing was timely sent to all parties, as well as the Protestants. (1)
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 Division has personal and subject matter jurisdiction in this matter.
3. The Petitioner seeks an off-premises beer and wine permit for the location known as Kountry Kubbard, located at 3912
Maidendown Road, Marion, South Carolina 29571.
4. Kountry Kubbard is a convenience store that sells miscellaneous grocery items and has an on-site food preparation area.
5. Kountry Kubbard's hours of operation are 6:00 a.m. - 9:00 p.m., Monday through Saturday in the summer months, and 6:30 a.m. -
8:30 p.m. during the winter months.
6. The Department filed a Motion to be Excused from attending the hearing on July 17, 2000.
7. In its Motion, the Department indicated that the Petitioner met all statutory requirements relative to application for an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Ann. Regs. 7-90 (1976).
8. The Petitioner is at least twenty-one (21) years old. The Petitioner was born on July 28, 1978.
9. Notice of the application was published for three consecutive weeks in The Marion Star & Mullins Enterprise, a newspaper of
general circulation in the area.
10. The Petitioner is of good moral character. A check by the South Carolina Law Enforcement Division revealed no criminal
history.
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. 1998) grants jurisdicition to the South Carolina Administrative Law Judge Division to hear
contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-6-1825 (Supp. 1998) grants to the South Carolina Administrative Law Judge Division the powers, duties
and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Ann. Regs. 7-90 (1976) 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 testimony of the Protestants
concerning possible detrimental effects on to their community is conjectural and without any specific factual support.
8. The major complaints of the Protestants are based on conjecture and conclusions which this court concludes are without basis.
There is no evidence that law enforcement could not provide sufficient protection at the location and to residents in the general
vicinity; there is no evidence of any specific safety problems. Although the area surrounding the convenience store is exclusively
residential, there is no zoning in effect which would prevent a convenience store with an off-premises beer and wine permit from
being placed there. If the business at this location is operated properly, there will be no negative impact upon the community.
9. Permits and licenses issued by the State for sale of beer and wine are not rights or property, but are rather privileges granted in the
exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are
complied with. Because the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that
tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax
Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
10. 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.
11. I conclude that the Petitioner's burden of proof has been met by virtue of meeting all of the statutory requirements for the off-premises beer and wine permit at the proposed location. I further find that the location is suitable for the off-premises sale of beer
and wine.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 the Kountry
Kubbard, located at 3912 Maidendown Road, Marion, South Carolina, upon payment of the appropriate fees.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
October 30, 2000
Columbia, South Carolina
1. The Protestants present at the hearing were Susan and Walton Bass, Candice and Chris Tyler, David and Lily Herring, and Letitia
and Carlyle Tyler. |
