ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §61-4-520
(Supp.2000), §61-4-525 (Supp.2000), §61-2-260 (Supp.2000), §61-6-110 (Supp.2000), §61-6-1820 (Supp.2000), and §61-6-20 (6), (Supp.2000) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit and a sale
and consumption (mini-bottle) license for the location at 3289 Broad Street Ext., Sumter, South Carolina. This matter is
presently before the Division because of a protest by concerned citizens concerning the suitability of the location. The
Respondent moved to be excused since but for the protests they would have issued the permit and license. This motion was
denied. After notice to all parties and protestants, a hearing was conducted on October 18, 2001, at the Division in
Columbia, South Carolina. At the hearing, Protestant Verona Cabbagestalk was present; however, Protestant Gary Dean
Ray did not appear and his protest is deemed abandoned.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their
credibility, I make the following Findings of Fact by a preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit and a sale and
consumption (mini-bottle) license for the location known as Sabastians, located at 3289 Broad Street Ext., Sumter, South
Carolina.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements and would have granted the permit and license but for the protests
as to suitability of the location.
3. The Protestant and others present at the hearing live in close proximity to the
proposed location. There is one road, Saffon Drive, leading into the Crowndale subdivision where all the residences are
located. The proposed location is at the corner of Broad Street Ext. and Saffon Road.
4. Broad Street Ext. is a commercial area and there are other businesses located on
the road.
5. There are no churches, schools, or playgrounds within close proximity of the
proposed location.
6. The applicant is of good moral character. The State Law Enforcement Division's
criminal background investigation revealed no criminal violations.
7. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the
State of South Carolina, and has maintained his principal residence in the State for at least thirty days prior to the
application.
8. Notice of the application appeared in The Item, 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.
9. The Protestant cited noise, litter and drunken patrons outside of the establishment
as the reasons the proposed location is unsuitable. The Protestant also called others from the neighborhood who testified to
the same problems. The noise issues seem to have subsided since Petitioner opened the location for teens. However, the
residents fear the presence of alcohol will increase the noise again. At some time before the Petitioner took over the
location, large trees were cut at the rear of the property location and they fear this could cause increased noise in their
neighborhood.
The Protestant and her neighbors testified that litter continues to be a problem, especially along the shoulder of the road
between the establishment and Saffon Road. They also testified as to drunken patrons being in the parking lot after closing
when former establishments were in the location. Now, some of the teenagers go outside to the parking lot to drink.
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 jurisdiction over this matter pursuant to S.C. Code Ann. §
61-2-260 (Supp. 2000).
2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the
agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops,
Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d
308 (1981) (sale and consumption license).
4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the
relevance and weight of any testimony offered.
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 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). Any evidence adverse to the
location may be considered. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the
Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of
other licensed locations in the immediate vicinity, as well as the existence of small children in the area.
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 is not a sufficient reason alone to deny
the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. S.C. Code Ann. § 61-4-525 (Supp. 2000) provides that a person residing in the county in which a beer and wine permit is
requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if
he files a written protest.
9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the
police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10. Standards for judging the suitability of a proposed location for the sale of beer and wine are not to be determined by the
local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State
of South Carolina. The sale of beer, wine and liquor is a lawful enterprise in South Carolina, regulated by the State.
11. After considering all the relevant factors, I find that the location is suitable for the on-premises sale of beer and wine
and a sale and consumption (minibottle) license with the following restrictions:
a. No live music outside at any time;
b. The inside walls at the location should be thoroughly insulated with extra attention given to back wall facing the
neighborhood.
c. The Petitioner will provide a security guard to patrol the premises and parking lot.
d. The location will not allow alcohol to be taken outside of the building. The security guard shall be instructed to remove
any persons drinking alcohol from the parking lot.
e. There shall be a designated parking area and patrons shall not be allowed to park outside of that area, specifically along
the shoulder of Saffon Road. Shrubs shall be planted to discourage parking outside of the designated area.
f. There shall either be an earthen berm or a fence erected at the back of the property to block the location from the sight of
residents living behind it. The berm or fence shall be at least six feet high.
g. The outside of the establishment shall be patrolled nightly to remove any litter on the property.
h. The establishment shall close every night at or before 2:00 a.m.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner's application for an on-premises beer and
wine permit and sale and consumption (minibottle) license for the location at 3289 Broad Street Ext., Sumter, South
Carolina, subject to the following restrictions:
a. No live music outside at any time;
b. The inside walls at the location should be thoroughly insulated with extra attention given to back wall facing the
neighborhood.
c. The Petitioner will provide a security guard to patrol the premises and parking lot.
d. The location will not allow alcohol to be taken outside of the building. The security guard shall be instructed to remove
any persons drinking alcohol from the parking lot.
e. There shall be a designated parking area and patrons shall not be allowed to park outside of that area, specifically along
the shoulder of Saffon Road. Shrubs shall be planted to discourage parking outside of the designated area.
f. There shall either be an earthen berm or a fence erected at the back of the property to block the location from the sight of
residents living behind it. The berm or fence shall be at least six feet high.
g. The outside of the establishment shall be patrolled nightly to remove any litter on the property.
h. The establishment shall close every night at or before 2:00 a.m.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
December 3, 2001
Columbia, South Carolina |
