ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310
et seq. upon request of the applicant to determine whether there has been a material change with
respect to a proposed location for the processing of an off-premises beer and wine permit for that
location at 7162 Flat Rock Road, Heath Springs, South Carolina. A hearing on that sole issue was
held on May 6, 1994.
FINDINGS OF FACT
By the preponderance of the evidence, I make the following findings:
(1) The applicant seeks an off-premises beer and wine permit for a location at 7162 Flat
Rock Road, Heath Springs, South Carolina, having filed an application with DOR, AI no. 996723,
on November 18, 1993.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, SLED, and DOR.
(3) There has been prior litigation concerning the issuance of a beer and wine permit at this
location. Donna E. Bailey, d/b/a Donna's One Stop, AI No. 63865, filed an application for an off-premises beer and wine permit for the location in 1989. A hearing was held on July 10, 1989, and
an order dated November 8, 1989 denying the permit was rendered by ABC Commission Chairman
Elliot D. Thompson. The ABC order was appealed to circuit court, where it was reversed by Special
Circuit Court Judge William J. McLeod, by an order dated January 19, 1990. The ABC Commission
appealed the circuit court order. In an unpublished opinion, Bailey v. S.C. ABC Commission,
Unpublished Op. No. 91-UP-105, filed June 4, 1991, the Court of Appeals remanded the case back
to the ABC Commission for drafting and issuance of a new order pursuant to recent South Carolina
appellate court decisions relating to beer and wine permits. Upon remand the ABC Commission
rendered an order and decision dated August 30, 1991, signed by Commissioner A. Wayne Crick,
denying the permit. There was no appeal from that final order. (Commissioner Crick's August 30,
1991 order, containing seventeen separate findings of fact, is incorporated herein by reference. (4) As was the case with the previous application, the store is located in a rural residential,
church area. It is the only commercial property in the vicinity. There has been no material change
in the surrounding community.
(5) Beaver Creek Presbyterian Church is situated across Flat Rock Road, approximately five
hundred fifty feet (550') from the proposed location. Thorn Hill Baptist Church is situated
approximately 1.4 miles from the proposed location.
(6) There are residences to the southwest of this location. Since the last hearing, there are
more residents living in the area than before. A house trailer has been moved onto a lot with the
residents living within a few hundred feet of the proposed location.
(7) The store has been operated by previous owners for over twenty-seven years, without
being licensed to sell beer or wine.
(8) The store is located at a busy intersection traffic where fatalities have occurred in the past.
(9) The applicant serves members of the local community and those passing through the area
to and from Lake Wateree.
(10) The applicant wants to sell beer and wine to increase revenue at her store and meet
customer requests.
(11) According to Major John Caughman of the Lancaster County Sheriff's Department, the
community has not changed since 1989, nor has the response time necessary to have an officer answer
a call from the proposed location.
(12) The applicant is over twenty-one years old.
(13) The applicant is of good moral character.
(14) The applicant has not had a permit revoked within the last two years.
(15) The application is protested by Rev. John Davis, Marshall Roobinson, Johnny Robinson,
and Maj. John Caughman of the Lancaster County Sheriff's Department.
Accordingly, I find that the applicant has failed to establish a material change with
respect to the proposed location.
CONCLUSIONS OF LAW
Based on the foregoing Findings of Fact, I conclude, as a matter of law:
A judge of the Administrative Law Judge Division is authorized to hear this case pursuant to
S.C. Code §61-1-55 (Supp. 1993) and §1-23-310 et seq.
S.C. Code §61-9-320 (Supp. 1993) provides the criteria an applicant must meet for the
issuance of a beer and wine permit.
Pursuant to Act 181 of 1993, §1604, of the South Carolina General Assembly, known as the
"Government Restructuring Act", all regulations promulgated by the Commission and in effect as of
July 1, 1993, remain in full force until modified or rescinded by DOR or SLED.
Alcoholic Beverage Control Commission Regulation 7-96 states:
The Alcoholic Beverage Control Commission will not hear an application for a retail beer and
wine permit or an application for a retail off-premises beer permit when the location involved has
been declared by the Alcoholic Beverage Control Commission to be improper unless and until the
applicant can affirmatively show that some material change with respect to the location has occurred,
or unless otherwise ordered by the Alcoholic Beverage Control Commission.
The only issue to consider then, is whether the applicant has shown some material change with
respect to the proposed location since the August 31, 1991 Order of Commissioner Crick.
While the applicant offered evidence to correct or clarify the facts that existed at the date of
the initial hearing on this location, July 10, 1989, it failed to reveal any material changes in the
location itself or the surrounding community.
Accordingly, I conclude that there has been no showing of material change with respect to
the location since the August 31, 1991 Order by Commissioner Crick.
IT IS THEREFORE ORDERED that DOR refuse to process the applicant's application for
an off-premises beer and wine permit and refuse to process an application for 7162 Flat Rock Road,
Heath Springs, South Carolina, unless and until there has been a showing of material change with
respect to the location or is otherwise ordered by this court.
___________________________
STEPHEN P. BATES
Administrative Law Judge
May 31, 1994
Columbia, South Carolina |
