ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
§ 1-23-310, et seq., upon applications for an on-premises beer and wine permit and business sale
and consumption license for Highway 15, 401 Bypass, Bennettsville, South Carolina, by James B.
Connelly, Marlboro Foods, Inc., d/b/a Benney's (formerly d/b/a Shoney's) filed with the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR").
A hearing was held on April 7, 1995. DOR originally opposed the applications, but by
letter from counsel dated March 31, 1995, withdrew its opposition and did not appear at the
hearing. Protestant James F. Hunt, Pastor of True Faith Holiness Church, moved to intervene as
a party. He was admitted as an intervenor without objection. 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 and license applications are granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) The applicant seeks an on-premises beer and wine permit and business sale and
consumption license for a location at Highway 15, 401 Bypass, Bennettsville, South Carolina,
having filed applications with DOR, AI #100846 and AI #100927.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) The proposed location was formerly a Shoney's restaurant.
(4) Applicant is currently operating the proposed location as a full service restaurant,
primarily and substantially involved in the preparation and service of meals, serving breakfast,
lunch, and dinner, and intends to continue as such.
(5) If licensed, management expects 85-90% of business to come from food sales.
(6) The intended hours of operation of the proposed location are 6:00 a.m. - 12:00
midnight, seven days a week.
(7) There are four other licensed locations, Exxon, Winn Dixie, Food Lion, and Phillips
Grocery, within close proximity to the proposed location.
(8) The proposed location is within the city limits of Bennettsville.
(9) True Faith Holiness Church is located outside of the city limits of Bennettsville.
(10) At the time of application, True Faith Holiness Church was located approximately
380 feet from the proposed location, as measured by following the shortest route of ordinary
pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the
church, to the rear of the proposed location.
(11) There are no schools, playgrounds, or residences within 500 feet of the proposed
location.
(12) Subsequent to filing the license and permit applications, Applicant erected a six-foot
wooden fence around the back of the property boundary of the proposed location, causing the
church to be approximately 960 feet from the proposed location, as measured by following the
shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the
nearest point of entrance to the church.
(13) The Church is not opposed to the operation of the restaurant at the proposed
location; it is opposed only to the sale and consumption of alcoholic beverages at the proposed
location.
(14) The Church opposes the sale and consumption of alcoholic beverages at the
proposed location because of moral and religious convictions and because of the proximity of the
proposed location to the church building.
(15) Gino Calejo, the manager of the proposed location, has extensive experience in
operating restaurants licensed to serve alcoholic beverages.
(16) Calejo provides training in the form of videos, books, and personal instruction to all
employees regarding the sale and service of alcohol to patrons.
(17) The applicant is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
(18) The applicant has not had a permit/license revoked in the last five years.
(19) The applicant, and his manager, Gino Calejo, are of good moral character.
(20) 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) S.C. Code Ann. § 61-1-55 (Supp. 1994) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1994) set forth the requirements for
a minibottle license.
(4) A permit or license must not be issued if an applicant does not meet the standards of
S.C. Code Ann. § 61-3-730 (Supp. 1994).
(5) S.C. Code Ann. § 61-3-440 (Supp. 1994) dictates that a licensed location be at least
300 feet from any church, school, or playground located within a municipality and at least 500
feet from any church, school, or playground located outside of a municipality.
(6) S.C. Code Ann. Regs. 7-11 (1976) provides for the means of measuring distances
between proposed locations and churches, schools, and playgrounds.
(7) With the newly erected wooden fence at the rear of the proposed location, the True
Faith Holiness Church is not impermissibly close in proximity to the proposed location under
S.C. Code Ann. § 61-3-440 (Supp. 1994) and S.C. Code Ann. Regs. 7-11 (1976) to render the
location ineligible for a license.
(8) 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 license/permit to sell liquor,
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).
(9) 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).
(10) The proposed location is suitable and proper, in light of the extensive commercial
nature of the area, the existence of other licensed locations in the vicinity, the newly erected
wooden fence separating the proposed location from the True Faith Holiness Church, and the
unlikelihood of the business activity of the proposed location to disturb worship services or
related activities at the True Faith Holiness Church.
(11) Applicant meets the statutory requirements for issuance of a beer and wine permit
and minibottle license.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Applicant the on-premises beer and
wine permit and business sale and consumption license applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 12, 1995
Columbia, South Carolina |
