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. §§ 61-2-260, 1-23-310, and 1-23-600 (Supp. 2001) for a contested case hearing. Faithful W. Jones, d/b/a Mr. Wendell's Game Room,
13182 County Line Road, Andrews, South Carolina, ("Applicant") seeks an on-premises beer and wine permit.
Woody Monahan ("Protestant"), Principal of Andrews Elementary School, filed a protest to the application with the South
Carolina Department of Revenue ("Department") on May 22, 2002, citing the proximity of the location to Andrews
Elementary School. Because of the protest, the hearing was required.
The hearing was held on October 7, 2002, at the offices of the Division at 1205 Pendeleton Street, Columbia, South
Carolina. The Petitioner, Department, and the Protestant appeared at the hearing. Evidence was introduced and testimony
was given. After carefully weighing all the evidence, this tribunal finds that the on-premises beer and wine permit should
be denied.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and
taking into consideration the burden of persuasion by the Petitioner and the Protestant, I make the following findings of fact
by a preponderance of the evidence:
- Notice of the time, date, place, and subject matter of the hearing was given to all
the parties in a timely manner.
- The Applicant, Faithful W. Jones, applied for an on-premises beer and wine
permit on April 18, 2002, for the premises located at 13182 County Line Road, Andrews, S.C..
- The Applicant is over the age of twenty-one.
4. The Applicant is a resident and citizen of the state of South Carolina and has been for more than thirty days prior to
the filing of the application. Mr. Jones is of good moral character and has not been convicted of a crime within the last ten
years.
- Notice of this application appeared at least once a week for three consecutive
weeks in The Georgetown Times, a newspaper of general circulation in the local area where the Petitioner would operate.
6. Notice of the application was also given by displaying a sign for a minimum of fifteen (15) days at the location.
- The location operates as a game room, with video games and pool tables for
patrons. 8. No evidence was presented at the hearing of any law enforcement problems
having occurred at or around the location.
9. Woody Monahan, Principal of Andrews Elementary School, filed a protest on behalf of the local school district to
the issuance of the on-premises beer and wine permit.
10. Mr. Monahan testified at the hearing. His concern was the proximity of the proposed location to Andrews
Elementary School.
11. The location is across the road and fifty feet from the property of Andrews Elementary School, and three
hundred feet from the school building. Andrews Elementary School has 870 student, ages four to twelve. The facilities are
used after regular school hours and in the evening for events such as Boy Scout meetings and adult education classes.
12. Brendon M. Barber, Coordinator for Safe and Drug Free Schools for Georgetown County School District, testified
at the hearing. His concern was the proximity of the location to Andrews High School and Middle School.
13. Andrews High School and Middle School are located on the same property as Andrews Elementary School, and are
thus in close proximity to the Applicant's location. There are approximately 1600 students at these schools. The football
stadium, also located on this property, is used for games and practice after regular school hours and in the evening.
14. The location is unsuitable for the issuance of an on-premises beer and wine permit.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and Chapter 23 of Title 1 of the 1976 Code, as
amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.
2. The sale of beer and wine is a lawful enterprise in South Carolina, as regulated by the State.
3. S.C. Code Ann. § 61-4-520 (Supp. 2000), which sets forth the requirements for the issuance of a beer and wine
permit, provides:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to
be employed on the licensed premises are of good moral character.
(2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days
before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the
date of application.
(3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least
thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days
before the date of application or has been licensed previously under the laws of this State.
(4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to
him.
(5) The applicant is twenty-one years of age or older.
(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.
(7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences,
schools, playgrounds, and churches. This item does not apply to locations licensed before April 21, 1986.
(8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give
notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The
department must determine which newspapers meet the requirements of this section based on available circulation figures.
However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are
published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer or
wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by
the department.
(9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of permit sought;
(b) state where an interested person may protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
4. As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed
business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Byers v. South
Carolina Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Although "proper location"
is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular
location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981).
5. 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 a proposed business and its impact upon the community
within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
6. It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance
and weight of any testimony and evidence offered. In considering the suitability of a location, it is relevant to consider
whether the testimony in opposition to the granting of a license is based on opinions, generalities, and conclusions or
whether the case is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
7. In evaluating the issuance of a beer and wine permit, the proximity of the location to a church, school, or playground is a
proper ground on which the location may be found to be unsuitable and the permit denied. Byers v. South Carolina
Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). In this case, the location is within an
improper proximity to a school.
8. The location is unsuitable for issuance of an on-premises beer and wine permit.
ORDER
Based on the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the application of Faithful W. Jones, d/b/a Mr. Wendell's Game Room, for an on-premises beer and wine permit for a business located at 13182 County Line Road, Andrews, South Carolina, is DENIED.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
October 23, 2002
Columbia, South Carolina |
