ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq.
(Supp. 2001) for a hearing on the application of The Eagle Zone. Petitioner seeks an on-premises beer and wine permit and
a sale and consumption (minibottle) license for a proposed business to be located at 8000 Pelham Road, Greenville, South
Carolina. After timely notice to the parties and Protestants, a hearing was held at the Administrative Law Judge Division
in Columbia, South Carolina on January 22, 2002. Protestant Marcus Cannon of the Greenville County Sheriff's
Department did not appear at the hearing and therefore his protest was deemed abandoned. The issues considered at the
hearing were (1) the Department's concern regarding the failure of the applicant to show that it is primarily and
substantially engaged in the preparation and serving of meals pursuant to S.C. Code Ann. §61-6-1610 (Supp. 2001), and (2)
Protestant's concern regarding the suitability of the address for the sale and consumption of beer, wine and alcoholic
liquors.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, 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:
- Petitioner seeks an on-premises beer and wine permit and a sale and consumption (minibottle) license for a
proposed business to be located at 8000 Pelham Road, Greenville, South Carolina. The business is situated in a
commercial area.
2. The Eagle Zone is a limited liability company having filed its Articles of Organization on
February 1, 2001. Neil Wilson, the principal for The Eagle Zone in whose name the license will be held,
is at least twenty-one years of age, a U.S. citizen, is of good moral character, and has maintained his principal place of
residence in the State for at least thirty days prior to the date of making application for a retail liquor license. He has not
had a beer and wine permit or an alcoholic liquor license revoked within two years of the date of the application.
3. The partners in the business are: Neil Wilson; George Bell; Peter Barnhart; Sam Phillips;
Jim Cockman; Phillip Wilson; William Flanagan; and Kim Durham. The State Law Enforcement
Division (SLED) completed a criminal background investigation of the individuals and the record does not indicate that
the partners have engaged in illegal acts. Nothing in the investigation revealed the partners are not of good moral character.
4. Notice of the application appeared in The Greenville News on Wednesday, May 2, 2001,
Monday, May 7, 2001 and Monday, May 14, 2001. The Greenville News is published and issued in the area of the
proposed business. Petitioner also displayed a sign for fifteen days at the site of the proposed business.
5. The Department's sole concern is that the proposed location does not currently meet the
requirements for service of food found in S.C. Code Ann. §61-6-1610 (Supp. 2001). However, Mr. Phil Wilson testified on
behalf of the Petitioner that the intent is to have a restaurant and golf facility at the location. Petitioner did not want to
invest financially in a full restaurant if the location was going to be found to be unsuitable for the permit and licence.
6. Batesville First Baptist Church is located approximately 1000 feet from the proposed
location. On the other side of the church there is a shopping center with three licensed locations. These locations are closer
to the church than the proposed location. Reverend Maynard believes those locations are different because they are
restaurants and do not involve the recreational use of alcohol as he believes the proposed location would. Also, he is more
comfortable with the other establishments because there is a traffic light at the shopping center exit, whereas there is no
traffic light at the proposed location.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- S.C. Code Ann. § 61-2-260 (Supp. 2001) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize
the South Carolina Administrative Law Judge Division to hear this case.
- S.C. Code Ann. §§ 61-6-1610 and 61-6-1820 (Supp. 2001) establish the criteria for determining eligibility
for a sale and consumption (minibottle) license. S.C. Code §61-4-520 (Supp. 2001) establishes the criteria for determining
eligibility for a beer and wine permit.
- Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law
Judge Division as 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). 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 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).
- The Department opposes the application on the basis that the Petitioner has not provided evidence that it can
provide the level of food service required by law. S.C. Code §61-6-1820 (1) Law Co-op. 2001) provides that an applicant
must conduct a business "engaged primarily and substantially in the preparation and serving of meals...." However,
testimony at the hearing showed that is the intent of the Petitioner, but that they did not want to invest such a large amount
of money into the restaurant if the location was going to be found to be unsuitable.
- The Protestant opposes the application because the proposed location is near the church where he is the
pastor and because he fears the road is not safe for impaired drivers who may be leaving the area. However, there is no
evidence to indicate impaired drivers will be leaving the area or that Petitioner will operate in an unlawful manner. It is not
clear how this establishment could be detrimental to a community which already has at least three licensed establishments.
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).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the Department of Revenue continue to process the application of The Eagle Zone for an on-premises beer
and wine permit and a sale and consumption (minibottle) license to be located at 8000 Pelham Road, Greenville, South
Carolina. The issuance of the sale and consumption (minibottle) license shall be contingent upon a reinspection by the
Department or SLED certifying the completion of an establishment engaged primarily and substantially in the preparation
and serving of meals.
AND IT IS SO ORDERED.
______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 2, 2002
Columbia, South Carolina |
