ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and
S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an on-premises beer and wine permit and club sale and consumption minibottle license for Route 2,
Box 105-F, Denmark, South Carolina. A hearing was held on September 7, 1994. The issues
considered were: (1) the applicant's eligibility to hold a license/permit; (2) the suitability of the
proposed business location; (3) the nature of the proposed business activity. The applications for
a beer and wine permit and minibottle license are hereby granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Applicant seeks an on-premises beer and wine permit and minibottle license for a
location at Rout 2, Box 105-F, Denmark, South Carolina, having filed applications with the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"), AI #99013
and AI #99014, on June 6, 1994.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) The DOR file was made a part of this record by reference by consent of the parties
and protestants.
(4) Applicant plans to operate the business as a nonprofit corporation and private club
with a substantial portion of the business dedicated to the preparation and service of meals.
(5) Applicant has incorporated as a nonprofit corporation, having been granted a
certificate of incorporation as C.R.B. Incorp. on June 28, 1994 and subsequently adopting bylaws.
(6) The proposed location is 1800' off of S.C. Highway 49, in rural Bamberg County,
along the edge of the Edisto River and swamp, connected to the highway by a dirt road leading
behind J.J.'s Paint & Body Shop and salvage yard.
(7) The proposed location is on land leased to Applicant by Jesse Glover, owner/operator
of J.J.'s Paint and Body Shop and a nearby resident.
(8) The immediate area surrounding the proposed location is wooded, with the residence
of only Frank Glover visible from the proposed location.
(9) Affidavits were submitted to the court by Applicant on behalf of twelve nearby
residents, including Frank Glover, in support of the applications.
(10) Rev. Walter Seay, a local resident, appeared at the hearing with several other
residents and testified as the spokesperson in protest to the applications, citing traffic and noise
problems, the proximity of residences, and the unsuitability of the proposed business activity and
location as reasons for denial of the applications.
(11) Applicant has previously held a permit at another location for approximately eight
years without incident or violation .
(12) No churches, schools, or playgrounds are within close proximity to the proposed
location.
(13) A video tape prepared by Applicant was submitted as evidence in support of the
applications. The video tape showed the inside and outside of the proposed location, as well as
the road, businesses, residences, and wooded area in the vicinity of the proposed location. The
tape was viewed in open court by the parties, protestants, and court.
(14) The potential traffic and noise problems suggested by protestants are speculative
concerns lacking a concrete basis for denial of the applications.
(15) Applicant is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained her principal residence in South Carolina for more than one year.
(16) Applicant has not had a permit/license revoked in the last five years.
(17) Applicant is of good moral character.
(18) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1993) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1993) set forth the requirements for
a minibottle license.
(4) A permit or license must not be issued if an applicant does not meet the standards of
S.C. Code Ann. § 61-3-730 (Supp. 1993).
(5) 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. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d
705 (S.C. App. 1984).
(6) 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
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. 335 (1985).
(7) The proposed location is suitable and proper, in lieu of the rural and secluded nature
of the area.
(8) Applicant meets the statutory requirements for issuance of a beer and wine permit and
club sale and consumption minibottle license.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Applicant an on-premises beer and
wine permit and club sale and consumption minibottle license upon payment of the prescribed fee
and bond and submission of the applicable tax information.
___________________________
STEPHEN P. BATES
Administrative Law Judge
September 19, 1994
Columbia, South Carolina |
