ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
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.
(1986 & Supp. 2001) for a contested case hearing. Petitioner Rudolph Stephens seeks an on-premises beer and wine permit
for a barbeque restaurant and pool hall located at 310 Barksdale Lane, Holly Hill, South Carolina. The Department of
Revenue (Department) would have granted the permit but for the protests filed by local residents regarding the suitability of
the restaurant's location. Accordingly, the Department was excused from the hearing of this matter. After notice to the
parties and the protestants, a hearing was held on January 16, 2002, at the Administrative Law Judge Division in Columbia,
South Carolina. Based upon the evidence presented regarding the suitability of the proposed location and the applicable
law, Petitioner's application for an on-premises beer and wine permit is hereby granted.
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. Petitioner submitted an application for an on-premises beer and wine permit to the Department on July 20, 2001, for the
premises located at 310 Barksdale Lane, Holly Hill, South Carolina. This application is incorporated into the record by
reference.
2. Petitioner leases the premises from Carlisle Stephens. During the 1980s and early 1990s, Petitioner operated the
proposed location as a convenience store known as "The Grasshopper Club."
3. Petitioner is a person of good moral character and has no record of any criminal convictions.
4. Petitioner is at least twenty-one years of age, a legal resident of the United States, and a legal resident of South Carolina.
Further, Petitioner has maintained his principal residence in South Carolina for at least thirty days prior to the date of his
application for the beer and wine permit.
5. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has not had a beer and wine
permit or alcoholic beverage license suspended or revoked.
6. Notice of the application appeared in The Holly Hill Observer once a week for three consecutive weeks and proper
notice of the application was posted at the proposed location for fifteen days.
7. The proposed location is situated on a two-lane road in a rural portion of Orangeburg County. The location is near
several residences and a church. Measured along public thoroughfares, the nearest residence is 279 feet from the proposed
location and the nearby church is roughly 750 feet from the location. When measured directly between the church and the
proposed location, the distance between the two buildings is approximately 350 feet. There are no schools or playgrounds
in the vicinity of the proposed location.
8. The protestants' opposition to the issuance of Petitioner's license is primarily based upon the close proximity of the
proposed location to two churches and several residences. The protestants are concerned that loud music and other
disturbances coming from the club will disrupt services at the churches and disturb local residents. The protestants are also
concerned that the amount of law enforcement in the area is insufficient to handle problems created by the establishment.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260
(Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001).
2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or
official to whom the duty of issuing it is committed[.]" Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246,
248, 317 S.E.2d 476, 477 (Ct. App. 1984).
3. S.C. Code Ann. § 61-4-520 (Supp. 2001) establishes the criteria for the issuance of a beer and wine permit. Included in
the criteria is the requirement that the proposed location be a suitable one. See id. § 61-4-520(6)-(7).
4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
or suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118
(1981).
5. The determination of suitability of location is not necessarily a function solely of geography. Rather, 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. S.C.
Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6. "[A] liquor license or permit may be properly refused on the ground that the location of the establishment would
adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment
would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be
conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 (1981).
7. However, without sufficient evidence of an adverse impact on the community, a permit application must not be denied if
the statutory criteria are satisfied. The fact that the issuance of a permit or license is protested is not a sufficient reason, by
itself, to deny the application. See id. § 119.
8. A permit to sell beer and wine is neither a contract nor a property right. Rather, it is merely a permit, issued or granted in
the exercise of the police power of the state to do what otherwise would be unlawful to do, and to be enjoyed only so long
as the restrictions and conditions governing its continuance are complied with. Feldman v. S.C. Tax Comm'n, 203 S.C. 49,
26 S.E.2d 22 (1943)
9. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an
on-premises beer and wine permit. In making a decision in this matter, this tribunal is constrained by the record before it
and the applicable statutory and case law. In the case at hand, the protestants' concern with the proximity of churches to
the proposed location is mainly rooted in their moral objection to the sale of alcoholic beverages. While this tribunal
acknowledges the protestants' opposition to the issuance of the permit, as well as their right to hold such sentiments, mere
aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of a permit request. See, e.g., 48
C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). The protestants' secondary concern that Petitioner's establishment
may create disturbances that adversely affect churchgoers and nearby residents is simply too general and too speculative a
basis upon which to deny Petitioner's permit. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt,
258 S.C. 504, 189 S.E.2d 301 (1972). And, if Petitioner were to create such a public nuisance, his permit would be subject
to suspension or revocation. See S.C. Code Ann. § 61-4-580(5) (Supp. 2001); see also S.C. Code Ann. § 61-4-590 (Supp.
2001) (allowing local residents to file formal complaints with the Department regarding violations of Section 61-4-580
committed by a permittee). Lastly, there is no evidence in the record from the Orangeburg County Sheriff's Office that it
cannot provide adequate police protection to the area if Petitioner's permit is granted. Thus, while this tribunal respects the
arguments put forth by the protestants in opposition to Petitioner's permit, those arguments do not constitute a sufficient
basis upon which to deny Petitioner's permit application.
ORDER
Based upon the above Findings of Fact and Conclusions of law,
IT IS HEREBY ORDERED that the Department of Revenue continue processing Petitioner's application for an on-premises beer and wine permit for the location at 310 Barksdale Lane, Holly Hill, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
February 7, 2002
Columbia, South Carolina |
