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 off-premises beer and wine permit for 1148 Ten Oak Drive, Lancaster, South Carolina, by
Cleophus White filed with the South Carolina Department of Revenue and Taxation (hereinafter
referred to as "DOR"). A hearing was held on February 9, 1995. Upon written and oral motion, and
without objection, Protestant Ten Oaks Vicinity Concerned Citizens was admitted as an intervening
party opposed to the application. The issues considered were: (1) the applicant's eligibility to hold
a permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed
business activity. The permit application is hereby denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Applicant seeks an off-premises beer and wine permit for a location at 1148 Ten Oak
Drive, Lancaster, South Carolina, having filed an application with DOR, AI #99777.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) Without objection, Protestant Ten Oak Vicinity Concerned Citizens was admitted as an
intervening party.
(4) Testifying in support of the permit were: Cleophus White, Applicant; Sharon White,
Applicant's wife and owner of the beauty salon adjacent to the proposed location; and Rev.
Raymond Carolina, Pastor of Newhope Baptist Church.
(5) Testifying in opposition to the application were: Ms. Mary Mackey, a resident and
homeowner residing in the immediate area of the proposed location; and Rev. David Carter,
Pastor of Sherwood Baptist Church.
(6) The proposed location is currently under construction. Upon completion, the
proposed location will be operated by Applicant as a small convenience store.
(7) The proposed location is in unincorporated Lancaster County near the Town of
Lancaster in a predominately residential area containing houses, mobile homes and business
establishments.
(8) The proposed location is located between a beauty salon, owned and operated by
Applicant's wife, and a mobile home used as a residence. The beauty salon is the only
commercial establishment in the immediate vicinity of the proposed location.
(9) Sherwood Baptist Church is approximately 773' (seven hundred seventy-three feet)
from the proposed location.
(10) Eight or more residences are situated within 500' (five hundred feet) of the proposed
location.
(11) Numerous families with children reside in the neighborhood in which the proposed
location is located.
(12) Protestants oppose the proposed permit because of a fear that the sale of beer and
wine at the proposed location will create traffic, litter, crime and safety problems in the area.
(13) The intended hours of operation for the proposed location are 7:00 a.m.-10:00 p.m.,
Monday - Thursday, and Saturday; 7:00 a.m.-12:00 midnight, Friday; and 1:00 p.m.-6:00 p.m.,
Sunday.
(14) The applicant is over twenty-one years of age, is a legal resident of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than thirty days
prior to application.
(15) The applicant has not had a permit revoked in the last two years.
(16) The applicant, who intends to be the manager of the business, is of good moral
character.
(17) 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) The South Carolina Administrative Law Judge Division is empowered to hear this
case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and 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 before
issuance of a beer and wine permit.
(3) Pursuant to S.C. Code Ann. § 61-3-730 (Supp. 1993), a permit must not be issued if
the applicant is not a suitable person to be licensed or the place of business is not a suitable place.
(4) 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).
(5) Proximity of a proposed location to a church, school, or residence is a proper ground,
by itself, on which the location may be found to be unsuitable for the sale of beer or wine and,
thus, grounds for denial of the permit application. William G. Byers v. S.C. ABC Commission,
___ S.C. ___ , 407 S.E.2d 653 (1991).
(6) The proposed location is unsuitable for the sale of beer and wine because of the
immediate proximity of several residences.
ORDER
IT IS THEREFORE ORDERED that DOR deny the off-premises beer and wine permit
applied for.
________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
February 23, 1995
Columbia, South Carolina |
