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 John Yantsides, d/b/a The
Aegean Pizza, ("applicant") for an on-premise beer and wine permit (AI 100435) at 910-B
Cherokee Avenue, Gaffney, Cherokee County, South Carolina ("location").
A hearing was held on March 10, 1995, at the Spartanburg County Courthouse,
Spartanburg, South Carolina. Notice of the time, date, place and nature of the hearing was
timely given to all parties and the only protestant, Dr. James Samply. The issues considered
were: 1) the suitability of the proposed location, and 2) the nature of the proposed business
activity.
The application was protested by Dr. James Samply, pastor of the Cherokee Avenue
Baptist Church. Prior to the hearing Dr. Samply moved to be made a party and his motion
was granted. 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 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-premise beer and wine permit and rental
agreements
2. affidavit of publication notice in The Gaffney Ledger for the permit and license
3. sketch of proposed location
4. SLED investigative report
5. criminal history reports
6. protest letter by Cherokee Avenue Baptist Church
7. applicants letter to the Department requesting a hearing
Also, without objection, Petitioner placed into the record as Exhibit #1 a menu, and
Respondent/Dr. James Samply, without objection, placed into the record Exhibit #1-4 (4
photographs) and #5, tax map sheet.
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 for a restaurant
located at 910-B Cherokee Avenue, Gaffney, Cherokee County, South Carolina. The
location is just outside the city limits of Gaffney.
3. The applicant is over twenty-one (21) years of age.
4 Notice of the application has appeared at least once a week for three (3)
consecutive weeks in The Gaffney Ledger, 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. Presently, there is a restaurant called the Aegean Pizza operational at the
location with no alcoholic beverage permit. Adjacent to the restaurant located in the same
building, is the Cherokee Food Mart, which holds an off-premise beer and wine permit.
10. The proposed location is located in a mixed commercial and residential area.
11. The Cherokee Avenue Baptist Church, pastored by Dr. James Samply, objected
to the issuance of the on-premise beer and wine permit. The church with a membership of
one thousand, two-hundred members, is located across Cherokee Avenue and is
approximately two-hundred feet (200') from the restaurant. It has a family life center on its
property and across Cherokee Avenue it has a playground/softball field which also is
approximately two-hundred feet (200') from the building the restaurant is in.
12. There was testimony of incidents with individuals who purchased beer at the
Cherokee Food Mart and consumed it while traversing the church properties. Concerns of
the church were of additional potential problems from individuals who are allowed to
consume alcoholic beverages in the general vicinity of the church and its facilities.
13. The area is in a general decline and its citizens are economically classified as
low-income. Also, the intersection of Third Street and Cherokee Avenue where the church
is located is heavily congested.
14. There is a Boys and Girls club some 1/2 block behind the location and a public
school is in that general vicinity, also.
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 which provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1. The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are
of good moral character.
2. The retail applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.
3. The wholesale applicant is a legal resident of the United States and has been a
legal resident of the United States and has been a legal resident of this State for at
least thirty days before the date of application or has been licensed previously under
the laws of this State.
4. The applicant, within two years before the date of application, has not had revoked
a beer or a wine permit issued to him.
5. The applicant is twenty-one years of age or older.
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.
7. Notice of application has appeared at least once a week for three consecutive
weeks in a newspaper most likely to give notice to interested citizens of the county,
city, or community in which the applicant proposes to engage in business.
8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.
4. S.C. Code Ann § 61-3-440 (Supp. 1993) states that the Department shall not
issue certain licenses to a place of business within a certain distance of a church, school or
playground; however, locations for which beer and wine permits are requested are not
subject to those specific restrictions. However, the Cherokee Baptist Church, a playground
and a school are all located within close proximity of the Aegean Restaurant location.
5. 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.
6. 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).
7. 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 consisted of facts supporting
detriment to the community.
8. It is concluded that the applicant has not carried his burden of proof in
establishing that he has met all the statutory requirements for the issuance of the on-premise
beer and wine permit. The restaurant's closeness in proximity to a church, playground,
children's club and school with all their attendant activities, together with the already
congested traffic problems at the intersection of Third Street and Cherokee Avenue, are
sufficient factors as indicative of an unsuitable location.
12. Accordingly, it is concluded that the proposed location is not a proper one for
the granting of the permit applied for.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of law, it is hereby:
ORDERED that the application of John Yantsides, d/b/a the Aegean Pizza for an on-premise beer and wine permit at 910 Cherokee Avenue, Gaffney, Cherokee County, South
Carolina be denied.
AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina |
