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. § 1-23-310 (Supp.
2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) for a contested case hearing. The Petitioner, Theresa Humes, d/b/a
Humes Shop, seeks an on-premises beer and wine permit for an establishment located at 8964 Powell Road, Georgetown,
South Carolina 29440.
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 December 12,
2000.
After timely notice to the parties and protestants, a hearing was held at the Administrative Law Judge Division in
Columbia, South Carolina on February 1, 2001. At the hearing, the Protestants' attorney, Mr. Jack Scoville, made a
Motion to Intervene pursuant to ALJD Rule 20. This Motion was denied because the Petitioner objected and the
Protestants failed to show good cause for their failure to intervene earlier in this proceeding.
FINDINGS OF FACT
Having 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, Theresa Humes, d/b/a Humes Shop, seeks an on-premises beer and wine permit for an
establishment located at 8964 Powell Road, Georgetown, 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.
3. Petitioner is currently running a snack shop at the proposed location. The shop sells candy, crackers, sodas, and
hot dogs. The days and hours of operation of the proposed location are Friday and Saturday from 4:00 p.m. until 11:00
p.m.
4. The proposed location is a single-wide mobile home. There is a street light in the front and rear of the proposed
location. The Petitioner lives 500 feet from the proposed location.
5. The snack shop has been open since October 2, 2000, and Petitioner has had no complaints from the neighbors.
The Sheriff's Office has not been called, and there has been no loitering or vandalism on the property.
6. There is a day care located 3/10 of a mile from the proposed location, but the owner of the day care was not
present at the hearing to protest this permit.
7. Several members of the North Santee Christian Men's Breakfast Club testified at the hearing as Protestants. Mr.
Herbert Dennison is Secretary of the Breakfast Club and he objects to the issuance of this permit. Mr. Dennison lives less
than one mile from the proposed location. He feels that this snack shop will create an atmosphere for drugs in this
community and that the residential property values will decrease. Also, Mr. Dennison is worried about loitering that may
occur at the proposed location because it is a small mobile home.
Mr. Sammy Grayson is President of the Breakfast Club and objects to the issuance of this permit. Mr. Grayson lives in the
area and wants to keep the community a residential one. He testified that there was no need for this type of establishment
in this community.
8. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2000) concerning the residency and age of the
applicant are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two
years. Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
9. The Petitioner is of sufficient moral character to receive a beer and wine permit.
10. The proposed location is not unreasonably close to any church, school or playground.
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CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction to hear and to determine this
contested case pursuant to S.C. Code Ann. § 1-23-600 (Supp. 2000) and S.C. Code Ann. § 61-2-260 (Supp. 2000).
2. S.C. Code Ann. § 61-4-520 (Supp. 2000) sets forth the requirements for the issuance of an on-premise beer and wine
permit.
3. 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 the 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 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. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and
to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts.
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
7. 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 a Protestant objects to the issuance of a permit or license is not a 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). In this
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case, the testimony of the Protestants concerning possible detrimental effects 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. 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. I conclude that the Petitioner's burden of proof has been met by virtue of meeting all of the statutory requirements
for the on-premise beer and wine permit at the proposed location. I further find that the location is suitable for the on-premise beer and wine permit with the following restrictions. ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Theresa Humes, d/b/a Humes Shop for an on-premise beer and wine permit be granted,
subject to the conditions set forth below:
1. The Petitioner or her employees shall prohibit loitering and the consumption of beer or wine in the parking lot area
of the proposed location.
2. The sale of beer and wine at the proposed location is limited to Friday and Saturday from 5:30 p.m. until 11:00 p.m.
IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit
and may result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department of Revenue issue a beer and wine permit
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upon payment of the required fees and costs by the Petitioner.
AND IT IS SO ORDERED.
_________________________________ C. Dukes Scott
Administrative Law Judge
February 13, 2001
Columbia, South Carolina |
