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 Carnell Syrkett seeks an off-premises beer and wine permit
for his Southern Cash Grocery convenience store located at 100 Chestnut Street, Abbeville, South Carolina. The
Department of Revenue (Department) would have granted the permit but for the protest of Reverend Bobby S. Cutter on
behalf of the New Life Worship Center regarding the suitability of the store's location. Accordingly, the Department was
excused from the hearing of this matter. After notice to the parties and the protestant, a hearing was held on September 4,
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 off-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 off-premises beer and wine permit to the Department on January 16, 2002, for
the premises located at 100 Chestnut Street, Abbeville, South Carolina. This application is incorporated by reference into
the record.
2. The proposed location is situated along a two-lane road in an area with both residential and commercial buildings. The
location has been operated as a convenience store for approximately forty years and was licensed for the sale of beer and
wine prior to April 21, 1986. Petitioner purchased the property in December 2001.
3. Petitioner Carnell Syrkett, the sole owner and operator of Southern Cash Grocery, is over twenty-one years of age, is of
good moral character, has no delinquent state or federal taxes, and has no record of any criminal convictions.
4. Petitioner has been a legal resident of, and maintained his principal place of abode in, South Carolina for at least thirty
days before the date he submitted his application.
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 that was issued to him suspended or revoked.
6. Notice of the application for an off-premises beer and wine permit appeared in The (Abbeville, SC) Press and Banner
newspaper once a week for three consecutive weeks, and proper notice of the application was posted at the proposed
location for fifteen days.
7. Petitioner operates the location daily between the hours of 6:00 a.m. and 10:00 p.m.
8. The proposed location is situated in an area that is primarily commercial in nature, but that also contains some
residences. Nearby businesses include the Emerald Trust Company, a barber shop, a radiator repair shop, and two
establishments licensed for the sale of beer and wine. There are three residences within 536 feet of the proposed location.
However, no residence is closer than 413 feet to the proposed location. The New Life Worship Center is 285 feet away
from the proposed location, measured along the public thoroughfare from the door of the proposed location to the door of
the church.
9. Protestant Reverend Bobby S. Cutter of the New Life Worship Center opposed Petitioner's application for an off-premises beer and wine permit primarily because of the proximity of the location to his church and its grounds. Reverend
Cutter testified that the convenience store is approximately 32 feet from the fence surrounding the church's property and
about 225 feet from the church building itself. Reverend Cutter further testified that the New Life Worship Center moved
to its current location in September 2001, approximately three months before Petitioner re-opened the convenience store at
the proposed location. While a nearby nightclub has created disturbances and caused problems for Reverend Cutter and his
church, Reverend Cutter stated that Petitioner's operation of a convenience store at the proposed location has not created
any such problems or disturbances.
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).
4. Although "suitable 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 in 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. 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 48 C.J.S. Intoxicating Liquors § 119 (1981).
7. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an
off-premises beer and wine permit, and there has not been a sufficient evidentiary showing that the proposed location is
unsuitable for Petitioner's business or that the issuance of the permit would create problems in or have an adverse impact
on the surrounding community. Moreover, the introduction of the sale of beer and wine for off-premises consumption at
Petitioner's convenience store will not significantly change the nature or character of Petitioner's operations. This location
has been operated as a convenience store with a beer and wine permit for approximately forty years, and during that time it
has harmoniously coexisted with the surrounding community. A convenience store selling beer and wine for off-premises
consumption simply does not engender the sorts of problems associated with establishments that allow patrons to
congregate and consume beer and wine on their premises, with the attendant merrymaking and potential disturbance to
neighbors common to such gatherings. Furthermore, while the proximity of residences, schools, playgrounds, and churches
to a proposed location may be considered in the determination of suitability, such factors do not apply to locations licensed
before April 21, 1986. See S.C. Code Ann. § 61-4-520(7) (Supp. 2001). Because the proposed location was licensed for
the off-premises sale of beer and wine prior to April 21, 1986, its proximity to the property and buildings of the New Life
Worship Center does not render the location unsuitable for the permit in question.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Department of Revenue shall continue processing Petitioner's application for an off-premises beer and wine permit for the location at 100 Chestnut Street, Abbeville, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
September 5, 2002
Columbia, South Carolina |
