ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 61-4-525 (Supp. 2000), S.C.
Code Ann. § 1-23-310 (Supp. 2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) for a contested case hearing. The Petitioner,
Joseph Nelson, d/b/a Joes Grocery and Games, seeks an on-premises beer and wine permit for an establishment located at 8380 Black
River Road, Rembert, SC 29128.
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 granted by Order dated September 15, 2000.
After timely notice to the parties and protestants, a hearing was held at the Administrative Law Judge Division in Columbia, South
Carolina on November 30, 2000.
FINDINGS OF FACTHaving carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I find the
following by a preponderance of the evidence:
1. The Petitioner, Joseph Nelson, d/b/a Joes Grocery & Games, seeks an on-premises beer and wine permit for his
establishment located at 8380 Black River Road, Rembert, Sumter County, South Carolina.
2. Notice of the time, date, place, and subject matter of the hearing was given to all the parties in a timely manner.
- The Sumter County Sheriff, Tommy R. Mims, objects to the issuance of the permit
to the Petitioner because the Sheriff's Office believes issuing the permit would result in an increase in criminal activity in the
community. The Sheriff's Office has had numerous reports of drag racing on Black River Road in the area of the proposed location.
There have also been reports of people gathering on the outside of the proposed location and parking on the sides of Black River
Road instead of in a parking lot. There is a police substation approximately five to six miles from the proposed location but this
substation is not maned twenty-four hours a day by a police officer. The closest EMS facility is approximately fifteen to twenty miles
away from the proposed location.
The Kershaw County Sheriff, Steve McCaskill, testified that Black River Road is an extremely curvy road and that there have several
fatal traffic accidents on this road.
William Guery Felder, Carolyn Hamilton, James Hamilton, Robert McManus, Wayne McManus, John Shiver, T.B. Tilman, and John
Woolington object to the issuance of this permit and testified at the hearing. These Protestants are concerned about the close
proximity of Pisgah Baptist Church and their residences to the proposed location. They are also concerned about the littering around
the proposed location and the lack of adequate parking spaces. Furthermore, the Protestants voiced concerns about the drag racing
that occurs on Black River Road and the overall safety of this rural community if this permit is granted.
- The Protestants do not challenge the suitability of Joseph Nelson to hold the beer and
wine permit. However, these Protestants do challenge the suitability of the proposed location.
- There is not adequate police protection or EMS service to the area and, the nature of
the roads and proximity to families presents a danger to the people of the area.CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act.
- S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the ALJD the responsibilities to
determine contested matters governing alcoholic beverages, beer and wine.
- S.C. Code Ann. § 61-4-520 (Supp. 2000) sets forth the requirements for the issuance
of an on-premise beer and wine permit. Under S.C. Code Ann. § 61-4-520 (Supp. 2000), the location of the proposed place of
business must be proper. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in
determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E2d 118 (1981).
4. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the Petitioner and the
proposed business location for a license or permit using broad, but not unbridled, discretion. Byers v. South Carolina ABC
Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
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 operations of the 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).
6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows
adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n,
282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
7. "The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may find
the location to be unsuitable . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); Byers v. South
Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
8. Also, in reviewing the suitability of the proposed location, consideration should be given to evidence that granting the permit
will place a strain upon police to adequately protect the community. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C.
167, 417 S.E.2d 555, 556 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
9. In the instant case, the testimony and evidence establishes that granting this permit to the proposed location will place an
undue burden upon the police in this community. There have been numerous reports of drag racing in the area of the proposed
location and there have been several fatal traffic accidents on Black River Road. Therefore, I find that the proposed location is
unsuitable and improper for an on-premise beer and wine permit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the application of Joseph Nelson, d/b/a Joes Grocery & Games, for an on-premise beer and wine
permit is denied.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
January 23, 2001
Columbia, South Carolina |
