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) and S.C. Code Ann. § 1-23-310 (Supp. 2000) upon filing of an application by Petitioner, Jalin, L.L.C., d/b/a The Store ("Jalin" or
"The Store" or "Petitioner") for an off-premise beer and wine permit for a location at 1502 N. Jones Road,
Olanta, South Carolina. Upon receipt of written protests to the application, the South Carolina Department of
Revenue ("DOR") transmitted the case to the Administrative Law Judge Division ("ALJD") for a hearing.
Counsel for Reverend Joe Seay filed a Motion for Leave to Intervene with the ALJD. The undersigned
Administrative Law Judge ("ALJ") issued the Order Granting Intervention on July 24, 2001. After timely
notice to the parties and Protestants, a contested case hearing was held on August 7, 2001, at the ALJD in
Columbia, South Carolina. Testifying at the hearing in protest of the proposed location were Reverend Joe
Seay, Don Pigate, Phil Bosman, Luther Frank Sistrunk, and Timothy McFadden of the Florence County
Sheriff's Office. The owner of Jalin, L.L.C., Jake Strickland ("Strickland") and Pamela Kelly testified in
support of the application. Upon review of the relevant and probative evidence and applicable law, the
application for an off-premise beer and wine permit is denied.
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. Jake Strickland, on behalf of Jalin, L.L.C., seeks an off-premises beer and wine permit for the proposed
location of 1502 N. Jones Road, Olanta, South Carolina.
2. DOR moved to be excused from appearing at the hearing on the ground that it would have granted the
permit but for the unanswered question of the suitability of the proposed location. Said motion was granted.
3. Rev. Seay was allowed to intervene as a party pursuant to the Order Granting Intervention issued on July
24, 2001.4. Jake Strickland is the owner of Jalin, L.L.C.
5. Strickland intends to operate a convenience store, The Store, at the proposed location which is currently a
vacate building.
6. The proposed location is situated adjacent to the parsonage of the Bethel Baptist Church. The parsonage
is approximately two hundred (200) feet from the proposed location. The church is situated adjacent to the
parsonage.
7. The proposed location is an unincorporated area, therefore, the Florence County Sheriff's Office provides
police protection for this area.
8. This proposed location was denied an off-premise beer and wine permit of application AI #116268 by the
January 20, 1998 Order of Administrative Law Judge Stephen Bates.
9. Pursuant to Judge Bates' Order, the proposed location was deemed unsuitable for a beer and wine permit
due to the proposed location's close proximity to the church and to residences, a history of disturbances, and
the unavailability of adequate law enforcement
10. There was no testimony on behalf of the Petitioner that the proximity of the proposed location to the
church and residences had changed. In addition, there was no testimony that the lack of adequate law
enforcement had changed.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the ALJD to hear contested cases under
the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the ALJD the responsibilities to determine contested
matters governing beer and wine sales.
3. S.C. Code Ann. § 61-4-520 (Supp. 2000) provides the statutory requirements for the issuance of an off-premise beer and wine permit. It provides in part that the location must be proper.
4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of
fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593,
281 S.E.2d 118 (1981).
5. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the
proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion.
Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6. The determination of suitability of the proposed location is not necessarily a function solely of
geography. It may involve 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).
7. Case law establishes that the single finding that a location is proximate to a residence is by itself a proper
ground for denial of a permit. See Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653
(1991); Moore v. South Carolina ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992). Judge Bates' Order
held the proposed location was within too close proximity to residences. No evidence establishes any change
in the factor of proximity to the residences. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407
S.E.2d 653 (1991).
8. Once a forbidden proximity is found and the applicant fails to prove a change in that specific proximity
factor, any other alleged changes are by definition immaterial (see Byers, supra.) since the forbidden
proximity factor alone serves to deny the location's suitability (see Moore, supra.). Accordingly, Petitioner
has failed to prove the required material change at the location since he has not proven some material change
in the forbidden residential proximity.
9. Even absent Petitioner's failure of proof in the residential proximity issue, additionally, he has not
established a material change in the church proximity finding of Judge Bates' Order.
10. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable
statutory and case law. Therefore, I find that Jalin, L.L.C.'s application for an off-premise beer and wine
permit should be denied.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby
ORDERED that Petitioner's application for an off-premises beer and wine permit for 3206 Main Street,
Newberry, South Carolina is denied.
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
August 20, 2001
Columbia, South Carolina |
