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 William G. Willard, Fast
Phil's, Inc., d/b/a Fast Phil's, ("applicant") for an off-premise beer and wine permit (AI
100663) at 719 North Duncan Bypass, Union, Union 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, Donald W. Nix. 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 Donald W. Nix, a preacher and elder of the Union
Church of Christ. Mr. Nix 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 if all statutory
requirements were met.
The application request by the petitioner is granted with restrictions.
EXHIBITS
Without objection from the Petitioner or the protestant, copies of those portions of the
department's file set forth hereafter were made a part of the record:
1. application by petitioner for off-premise beer and wine permit and rental/lease
agreement
2. affidavit of publication notice in The Union Daily Times for the permit and
license
3. articles of incorporation of Fast Phil's, Inc.
4. sketch of proposed location
5. SLED investigative report
6. criminal history reports
7. protest letter by Donald W. Nix for the Union Church of Christ
The Petitioner, without objection, placed into the record two photographs as Exhibits
#1 and #2.
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 off-premise beer and wine permit for a convenience
store located at 719 North Duncan Bypass, Union, Union County, South Carolina.
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 Woodruff News, 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 proposed location is located in a mixed commercial and residential area.
Directly across the highway from the proposed location is the Union Church of Christ.
10. Applicant and/or other family members own ten other Fast Phil convenience
stores and each has an off-premise beer and wine permit.
11. Donald W. Nix, preacher and elder at the Union Church of Christ, was the sole
protestant and testified. The church takes a position that drinking alcoholic beverages is
morally wrong and objects to a business at its front door selling beer and wine. The church
further objects to outside advertising of alcoholic beverages at the proposed location.
12. Applicant stipulated to no outside advertising of beer or wine at the location.
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.
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.
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 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). 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 only consisted of objections
based on moral grounds.
8. 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.
9. Permits and licenses issued by the State for sale of liquor, beer, and wine are
not rights or property, but are rather privileges granted in the exercise of the police power
of the State to be used and enjoyed only so long as the restrictions and conditions governing
them are complied with. As the tribunal authorized to grant the issuance of a permit is also
authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions
or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203
S.C. 49, 26 S.E. 2d 22 (1943).
10. It is concluded that the applicant has met his burden of proof in showing that
he meets all of the statutory requirements for holding an off-premise beer and wine permit,
that the proposed location is a proper one, and accordingly, the beer and wine permit should
be granted with restrictions.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of William G. Willard, Fast Phil's, Inc., d/b/a Fast
Phil's for an off-premise beer and wine permit for the premises located at 719 North Duncan
Bypass, Union, Union County, South Carolina is granted with the following restriction, upon
the applicant signing a written agreement to be filed with the South Carolina Department of
Revenue and Taxation to adhere to the stipulation set forth below:
1. There will be no outside advertising of beer and wine at the location.
IT IS FURTHER ORDERED that a violation of the above condition is considered
a violation against the permit and may result in a fine, suspension, or revocation.
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 |
