ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C.
Code Ann. §§ 61-1-55 (Supp. 1993) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and
Supp. 1993) for a hearing pursuant to the application of Joyce T. Whitmire, d/b/a Game of
Chance, ("applicant") for an on-premises beer and wine permit (AI 99782) at 401 S. Main
Street, Fountain Inn, Greenville County, South Carolina ("location").
A hearing was held on December 12, 1994, at Greenville Technical College,
Greenville, South Carolina. Notice of the time, date, place and nature of the hearing was
timely given to all parties including the protestants. The issues considered were: 1) the
suitability of the proposed business location, and 2) the nature of the proposed business
activity.
The application was protested by various individuals who appeared and testified.
None wished to be made a party. As outlined in its Pre-Hearing Statement, the South
Carolina Department of Revenue and Taxation ("department") was not represented at the
hearing and did not object to the issuance of the permit.
The application requested by the petitioner is denied.
EXHIBITS
Without objection, copies of those portions of the department's file set forth hereafter
were made a part of the record:
1. application by petitioner for on-premises beer and wine permit with rental
agreement
2. affidavit of publication notice in The Tribune Times for the permit
3. protest letters from City of Fountain Inn Police Department, Rev. Michael W.
Bearden, Mr. and Mrs. B. Frank Holland, John Woods and Peter V. Lynch
4. sketch of proposed location
5. investigative report by SLED dated September 14, 1994
6. criminal history report
7. correspondence between petitioner and respondent/Department of Revenue and
Taxation
Also, the petitioner introduced a number of photographs and the respondent/City of
Fountain Inn introduced a number of photographs and a sketch of the location, all of which
were made exhibits without objection:
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. The applicant is seeking an on-premises beer and wine permit for a sportsbar
at 401 S. Main Street, Fountain Inn, Greenville County, South Carolina.
3. The applicant is fifty-three (53) years of age, married and has not had an
application revoked within the two (2) years preceding the date of the filing of this
application.
4. Notice of the application has appeared at least once a week for three (3)
consecutive weeks in The Tribune Times, a newspaper of general circulation in the local area
where the applicant proposes to engage in business.
5. Notice of the application has been given by displaying a sign for a minimum
of fifteen (15) days at the site of the proposed location.
6. The applicant has been a legal resident of South Carolina for over thirty days
and maintained his principal place of abode in South Carolina for over thirty days.
7. The applicant is of good moral character.
8. The applicant has never had a beer and wine permit or mini-bottle license
revoked.
9. The applicant intends to operate a sportsbar at the location Monday through
Wednesday between the hours of 10:00 a.m. and 10:00 p.m. and on Thursday through
Saturday between the hours of 10:00 a.m. and 12:00 a.m.
10. There are no schools within close proximity to the proposed location.
11. The proposed location is located in a mixed residential and commercial area.
A funeral home and church are located one block away behind the proposed location.
12. The proposed location is a masonry building rented by the applicant in which
she has operated her business since August 1, 1994. There are video machines and a pool
table inside, but no juke boxes. There is limited parking in the front and additional parking
to the rear of the building.
13. The building is located at the intersection of South Main Street, a heavily
traveled highway, and Knight Street inside the city limits of Fountain Inn, South Carolina,
approximately 1/10 mile from a city park. Walking traffic consisting of many youngsters
frequent the streets adjacent to the location during various seasons of the year.
14. Sgt. John Rumfelt, Jr., of the City of Fountain Inn police department, Marion
Beasley (resident of Fountain Inn), Rev. John Woods, Pastor of Heritage Baptist Church,
Peter V. Lynch, B. Frank Holland (a city councilman of Fountain Inn), Mrs. Evelyn Petitt
(a city councilwoman of Fountain Inn), Rev. Michael Bearden (Pastor, First Baptist Church
of Fountain Inn) and Everett Thomas all testified against the issuance of the requested
permit. Their concerns were many: that alcohol consumption is morally wrong, the danger
to children and other pedestrians walking along the streets from patrons who may come out
of the proposed location under the influence causing bodily harm, the increased traffic which
would contribute to an already hazardous situation at the intersection and the number of
licensed locations in the area already.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the
following:
1. S.C. Code Ann. Section 1-23-600 (Supp. 1993) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative
Procedures Act.
2. S.C. Code Ann. Section 61-1-55 (Supp. 1993) grants to the Administrative Law
Judge Division the powers, duties and responsibilities as a hearing officer in protested and
contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. Section 61-9-320 (Supp. 1993) sets forth the requirements for
the issuance of an on-premises beer and wine permit.
4. S.C. Code Ann. § 61-3-440 (Supp. 1993) prohibits the issuance of a liquor
license for on-premises consumption to an applicant if the place of business (location), if
located inside a municipality, is within three hundred feet (300') of a church, school or
playground. However, locations for which beer and wine permits are requested are not
subject to those specific restrictions.
5. S.C. Code Ann. § 61-3-480 authorizes the South Carolina Department of
Revenue and Taxation to limit the further issuance of liquor licenses in any political
subdivision if it determines that the number of retail outlets located therein are sufficient to
adequately serve the citizens therein. However, such statutory provision is not specifically
applicable to beer and wine requests.
6. As 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).
7. 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).
8. Although "proper location" is not statutorily defined, broad discretion is vested
in the Division in determining the fitness or suitability of a particular location. Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 181 (1981).
9. There has been sufficient showing and the most credible evidence is that the
present location is unsuitable, is not a fit location, would increase stress in terms of the
resident's and pedestrians safety and would create additional traffic problems.
10. It is concluded that the applicant does not meet all of the statutory requirements
for holding a retail beer and wine permit and accordingly, I conclude that the proposed
location is an improper one for granting the on-premises beer and wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Joyce T. Whitmire for an on-premises beer and
wine permit at 401 South Main Street, Fountain Inn, Greenville County, South Carolina be
denied.
AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
January 18, 1995 |
