ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal 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 Country Store & Grill, Inc. seeks an off-premises
beer and wine permit for a convenience store located at 1202 Fairview Road, Simpsonville, South Carolina. The South
Carolina Department of Revenue (Department) would have granted the permit but for the protest of Pastor Jack Boyer on
behalf of the Calvary Crossroads Baptist Church 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 November 7, 2002, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the testimony
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 June 13, 2002, for the
premises located at 1202 Fairview Road, Simpsonville, South Carolina. This application is incorporated into the record by
reference.
2. The proposed location is situated along a two-lane highway in a rural portion of Greenville County, South Carolina, on
the outskirts of Simpsonville, South Carolina. The location has been operated as a convenience store since 1992 and has
been licensed for the sale of beer and wine during that time. The current owner of the property, Randy Smith, purchased
the store from his brother in 1998 and operated the convenience store until December 2001, when he closed the business
and allowed the beer and wine permit to lapse. In mid-2002, Mr. Smith reopened the business under the corporate name,
Country Store & Grill, Inc., with Elaine L. Heaton, to whom he leases the property.
3. Petitioner Country Store & Grill, Inc. is a statutory close corporation that was incorporated in South Carolina on June 11,
2002. Ms. Heaton is the sole shareholder and owner of Country Store & Grill, Inc. Petitioner's permit application lists Mr.
Smith as the designated agent of the corporation and as a person with day-to-day operational management responsibilities
for Petitioner's store.
4. Both Ms. Heaton and Mr. Smith are over twenty-one years of age, are persons of good moral character, have no
delinquent state or federal taxes, and have no record of any criminal convictions.
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 Petitioner's application for an off-premises beer and wine permit appeared in The Tribune-Times, a Greenville
County newspaper, once a week for three consecutive weeks, and proper notice of the application was posted at the
proposed location for fifteen days.
7. There are no schools or playgrounds within the vicinity of the proposed location. There are three residences within
approximately 700 feet of the proposed location, but no residence is closer than 654 feet to the location. The Calvary
Crossroads Baptist Church is located across Jenkins Bridge Road from the proposed location. Measured along the public
thoroughfare from the door of church to the door of the proposed location, the Church is approximately 414 feet away from
the proposed location.
8. Protestant Pastor Jack Boyer of the Calvary Crossroads Baptist Church opposed Petitioner's application for an off-premises beer and wine permit primarily because of the proximity of the proposed location to his church, the traffic dangers
caused by individuals driving under the influence of alcohol, and his moral aversion to the sale of alcoholic beverages.
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); see also Wall v. S.C. Alcoholic Beverage Control Comm'n, 269 S.C. 13, 235
S.E.2d 806 (1977).
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 proper and 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
and 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. 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. Further, the denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary
support when relevant testimony of those opposing the requested license or permit consists entirely of opinions,
generalities, and conclusions not supported by the facts. 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).
8. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and
case law. 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 store or that the issuance of the permit would create problems in or have an adverse
impact on the surrounding community. Although Pastor Boyer expressed a concern that the proposed location is too close
to the church to be permitted to sell beer and wine, his objections were mainly rooted in his moral objection to the sale of
alcoholic beverages. In fact, Pastor Boyer admitted that, as currently operated, the store is an asset to the community. This
tribunal acknowledges Pastor Boyer's opposition to the issuance of the permit, as well as his right to hold such sentiments.
However, mere aversion to the sale of alcoholic beverages is not within the statutory grounds for the denial of a permit
request. Further, Pastor Boyer's concerns about drunk driving are too general and speculative to constitute a ground upon
which to prohibit Petitioner from lawfully selling alcoholic beverages for off-premises consumption in the instant case. In
sum, while this tribunal is respectful of the protestant's position, the arguments proffered by the protestant do not constitute
a sufficient basis upon which to deny Petitioner's application. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981).
ORDER
Based upon the Findings of Fact and Conclusions of Law above,
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 1202 Fairview Road, Simpsonville, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
November 14, 2002
Columbia, South Carolina |
