ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division on the application of
William F. Culbreth for an off-premises beer and wine permit for Summer's Store located in
Winnsboro, South Carolina. After notice to the parties, a hearing was conducted on September
23, 1994.
At the conclusion of the hearing, Mr. Francis Lewis, the protestant was given the
opportunity to consult with an attorney about possibly intervening as a party. Creighton Coleman
did not object to adding Mr. Lewis as a party. After consultation with an attorney, a motion was
filed to intervene as a party. Based upon the motion, Mr. Lewis is a person affected by and
interested in the outcome of this case. His interests are not adequately represented by the
Department of Revenue and Taxation. He is therefore added as a party to this action.
Based upon the testimony and evidence presented at the hearing, I make the following:
FINDINGS OF FACT
1. The applicant is over the age of 21 and is a legal resident of the State of South
Carolina. He has been a resident for over three years.
2. He has a 1991 conviction in Kentucky for driving under the influence for which he
paid a fine. There are no other convictions or arrest. He is a person of good moral character.
3. According to his application, he applied for a license with the Alcoholic Beverage
Control Commission in 1992. Culbreth states the license was denied because the attorney who
completed the application failed to disclose that the business was a partnership. The partner is no
longer affiliated with the business.
4. Notice of the application was posted at the location and was published in The
Herald Independent for the required time period.
5. The applicant is the owner and sole proprietor of Summer's Store located on
Route 3 in Winnsboro. The store is a general mercantile store that also sells food. There are four
video poker machines located in the store. The hours of operation are 6:00 a.m. to 7:00 p.m.
There have been no problems with law enforcement in the three years he has been operating the
store.
6. The location is not near any churches, schools or playgrounds. There are only a
few residences in the vicinity.
7. The location was previously licensed to sell beer and wine for both on and off
premise consumption. That license expired in 1992. Originally, Culbreth intended to apply for
the same type of license but because of the strong neighborhood objection to the on-premise
consumption he applied only for an off-premise permit. There is a petition against the on-premise
permit contained in the file of the Department. Exhibits were submitted by persons who did not
object to off-premise consumption. The only protestant Mr. Francis Lewis published an ad in the
newspaper to notify anyone who wished to protest the application of the hearing. No one
appeared at the hearing except Mr. Lewis.
8. Mr. Lewis protest the application because there are not enough restroom facilities
in the location; he thought it was a partnership; it is located in the most populated area of the
county; and he feels there are sufficient establishments in the area that sell beer and wine. His
religion also opposes the consumption of alcoholic beverages. Lewis states there have been
incidents of vandalism and loitering in the area after the store is closed. He does not know
whether patrons of Summer's Store have been involved in the incidents. There are a number of
people in the community that have drinking problems and the addition of beer and wine in the
community will exacerbate the problem.
9. Culbreth talked with Lewis about the application and Lewis indicated he would not
object to the off-premise sale of beer and wine. However, Lewis appeared to protest the
application. Mr. Lewis operated a store in the Clemson area that sold groceries and beer. His
aunt also operated a store in which she sold beer.
CONCLUSIONS OF LAW
1. The Administrative Law Judge Division is vested with the powers, duties and
responsibilities exercised by the former Alcoholic Beverage Control Commission and hearing
officers pursuant to Chapter 23 of Title 1. S.C. Code of Laws § 61-1-55 (Supp. 1993).
2. S. C. Code § 61-9-320 (Supp. 1993) provides the statutory requirements for the
issuance of beer and wine permits. It states in part:
No permit authorizing the sale of beer or wine may be issued unless:
...
(6) The location of the proposed place of business of the
applicant is in the opinion of the department a proper one.
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 its effective date.
S.C. Code § 61-9-320 (6) (Supp. 1993).
3. Although "proper location" is not statutorily defined, "rather broad discretion is
vested in the Commission in determining the fitness or suitability of a particular location." Fast
Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (S.C. 1981). This determination of
suitability is not solely a function of geography, but involves an infinite variety of considerations
related to the nature and operation of the proposed business and its impact upon the community
where it is to be situated. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel
v. S.C. ABC Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).
4. In addition, proximity of a location to a church, school, playground, or residence is
a proper ground, by itself, on which the location may be found unsuitable for a permit to sell beer
and wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653 (S.C. 1991). The
proposed location is not in close proximity to any of these entities.
5. The protest relates to criminal activity which could not be attributed to patrons of
Summer's Store. The store does not need to have adequate rest room facilities for off-premises
consumption. There is no evidence about other establishments in Fairfield County that sell beer
and wine other than the statement by Lewis. Although a petition was signed about the on-premises consumption of beer and wine, some of those protestants withdrew their protest when
the application was changed to off-premises consumption. There is no evidence to support the
position of the protestant that the sale of beer and wine for off-premise consumption would be
detrimental to the community.
6. The applicant and the location meet the criteria for the issuance of an off-premise
beer and wine permit.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, the application for an
off-premise beer and wine permit is GRANTED. Therefore, it is
ORDERED, that the Department of Revenue and Taxation shall issue William F.
Culbreth an off premise beer and wine permit for Summer's Store upon the payment of the
appropriate fees.
AND IT IS SO ORDERED.
______________________________
ALISON RENEE LEE
Administrative Law Judge Division
October _____, 1994 |
