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, et seq. (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 Rita L. Mann, H & R of
Greenville, Inc., d/b/a Woody's Sports and Spirits, ("applicant") for an on-premise beer and
wine permit (AI 100408) and a business sale and consumption ("mini-bottle") license (AI
100409) at 523 Woodruff Plaza, Woodruff, Spartanburg County, South Carolina ("location").
A hearing was held on March 10, 1995, at the Spartanburg County Courthouse,
Spartanburg, South Carolina. Notice of date, time, place and nature of the hearing was
timely given to all parties including the one protestant, Dr. William L. Howell. The issues
considered were: 1) the suitability of the proposed location, and 2) the nature of the
proposed business activity.
The applications were protested by Dr. William L. Howell, Superintendent of the
Spartanburg County School District #4. Dr. Howell did not wish 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 and license if all statutory requirements were met.
The application requests by the petitioner are granted.
EXHIBITS
Without objection from the Petitioner or the protestants, copies of those portions of
the department's file set forth hereafter were made a part of the record:
1. applications by petitioner for on-premise beer and wine permit and club sale
and consumption (mini-bottle) license, and rental agreements
2. affidavit of publication notice in The Woodruff News for the permit and
license
3. articles of incorporation of H & R of Greenville, Inc.
4. By-Laws of H & R Greenville, Inc.
5. surety bond
6. sketch of proposed location
7. SLED investigative report
8. criminal history reports
9. protest letter by Dr. William L. Howell, Spartanburg County School
District #4
10. applicants letter to the Department requesting a hearing
The Petitioner, without objection, placed into the record Exhibit #1, consisting of
seven (7) photographs.
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-premise beer and wine permit and a sale and
consumption ("mini-bottle") license for a private club called Woody's Sports and Spirits
located at 523 Woodruff Plaza, Woodruff, Spartanburg County, South Carolina. Applicant
filed the application as President of H & R of Greenville, Inc., a non-profit corporation under
the laws of the State of South Carolina on September 1, 1994. Applicant's husband, Robert
Mann, and Henry J. Orr, Jr., are officers of the corporation, also.
3. The applicant is over twenty-one (21) years of age.
4. Notice of the applications have appeared at least once a week for three (3)
consecutive weeks in The Woodruff News, a newspaper of general circulation in the local
area where the applicant proposes to engage in business.
5. Notice of the applications have 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 and her husband Robert Mann, who both testified, intend to
operate and manage the private club on a full-time basis. They incorporated H & R of
Greenville, Inc. with Henry J. Orr, Jr.
10. The applicant intends to operate between the hours of 11:00 a.m. and 2:00 a.m.
Monday through Saturday and between the hours of 1:00 p.m. and 2:00 a.m. on Sundays.
11. Henry J. Orr, Jr., who testified, is a principal in H & R of Greenville, Inc., and
has knowledge of alcoholic and beverage control regulations, rules and policies. He owns
a package store and is involved in a private club, both of which are located in Greenville,
South Carolina.
12. The location is situated in a strip shopping center called Woodruff Plaza in
Woodruff, South Carolina. A Community Cash grocery store is located in the plaza and has
an off-premises beer and wine permit.
13. The rear side of the Woodruff Plaza shopping center is separated from
Woodruff High school by a dirt road and an eight foot (8') high chain link fence.
14. Patrons/customers at the proposed location will enter and exit through its front
doors. There is a window at the entrance where members, who must be at least twenty-one
(21) years of age, are carded before they can enter.
15. The closes church is New Bethel Baptist Church located across Highway 221
from the shopping center, some eight hundred and fifty feet (850') away.
16. The proposed location is in a mixed commercial and residential area. The
evidence indicates that the location is not within five hundred feet (500') of any church,
school or playground. There are other commercial establishments in the Woodruff Plaza
shopping center.
17. The sole protestant, Dr. William L. Howell, objected to the location due to its
"potential disruptive influence" in the neighborhood.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the
following:
1. S.C. Code Ann. § 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. § 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 a beer and wine permit.
4. S.C. Code Ann. Section 61-5-50 (Supp. 1993) sets forth the requirements for
the issuance of a sale and consumption ("mini-bottle") license.
5. S.C. Code Ann. § 61-3-440 (Supp. 1993) prohibits the issuance of a liquor
license for on-premise 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. No churches, schools or playgrounds are located within the prescribed
proximity to render the proposed location unsuitable.
6. A permit may not be issued under S.C. Code Ann. § 61-3-730 (Supp. 1993) if
the applicant is not a suitable person to be licensed; the place of business is not a suitable
place; or a sufficient number of licenses have already been issued in the state, municipality
or community.
7. A license for the sale and consumption of alcoholic beverages must not be
granted unless the provisions of S.C. Code Ann. § 61-5-50 are met. In addition to many of
the same requirements contained in S.C. Code Ann. § 61-9-320, § 61-5-50 also requires that
the mini-bottle licensee be either a bona fide non-profit organization or conduct bona fide
business engaged primarily and substantially in food preparation and service or furnishing
of lodging.
8. The factual determination of whether or not an application is granted or denied
is usually the sole prerogative of the executive agency charged with rendering that decision.
Palmer v. South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). 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). It is also the fact finder's responsibility to judge the demeanor and credibility
of witnesses and determine the relevance and weight of any testimony and evidence offered.
9. 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). 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). Any evidence adverse to the location may be considered. The proximity of a
location to a church, school or residences is a proper ground by itself, on which the location
may be found to be unsuitable and a permit denied. William G. Byers v. South Carolina
ABC Commission, ____ S.C. ____, 407 S.E. 2d 653 (1991).
10. In considering suitability of location, it is relevant to consider previous history
of the location and to determine whether the testimony in opposition to the granting of a
permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 198 S.E.
2d 801 (1973). In this instance the testimony of the protestant only consisted of opinions and
the claimed detriment to the community is without factual support.
11. S.C. Code Ann. §61-9-340 (Supp. 1993) states that upon a determination that
an applicant meets the criteria set forth and has not misstated or concealed a fact in the
application, the S.C. Department of Revenue and Taxation must issue the permit after
payment of the prescribed fee.
12. It is concluded that the applicant has met her burden of proof in showing that
she meets all of the statutory requirements for holding a retail beer and wine permit and a
sale and consumption ("mini-bottle") license, not withstanding the objections as to its
location and activity and accordingly, I conclude that the proposed location is a proper one
for granting the permit and license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Rita L. Mann, H & R of Greenville, Inc. d/b/a
Woody's Sports and Spirits for an on-premise beer and wine permit and a sale and
consumption (mini-bottle) license for the premises located at 523 Woodruff Plaza, Woodruff,
Spartanburg County, South Carolina be granted and,
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue
the permit upon payment of the required fees and costs by the applicant.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
March 16, 1995 |
