ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
S.C. Code Ann. § 1-23-310, et seq. (Supp. 1994) for a hearing on the application of Gary D.
Renaud. The Applicant seeks an off-premises beer and wine permit (AI 102403) for a
convenience store to be located at 2406 Augusta Highway, Lexington County, South Carolina.
After timely notice to the parties and protestants, a hearing was held at the Administrative
Law Judge Division in Columbia, South Carolina. Three protestants of record appeared at the
hearing, Kenneth W. Lake, Joe H. Bedenbaugh, and Allan Whitacre. The protestants did not
move to intervene as parties. The issues considered at the hearing were: (1) the Applicant's
eligibility to hold a beer and wine permit; (2) the suitability of the proposed business location; and,
(3) the nature of the proposed business activity. The off-premises beer and wine permit for 2406
Augusta Highway, Lexington County, South Carolina is hereby denied.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following Findings of Fact by a preponderance of the evidence:
1. The Applicant seeks an off-premises beer and wine permit for a convenience store
located at 2406 Augusta Highway, Lexington County, South Carolina.
2. The South Carolina Department of Revenue and Taxation's ("DOR") file was
made a part of the record by reference with the consent of the petitioner and the protestants.
3. The proposed location is situated in a commercially zoned area directly off of
Augusta Highway, a four lane major thoroughfare.
4. The Applicant's proposed convenience store is located within 460 feet of
Lexington Technology Center, which is directly in front of the proposed location on the opposite
side of Augusta Highway. This center provides educational instruction to high school students
and adults during the day and at night. Further, Lexington High School is also located on the
opposite side of Augusta Highway 1,686 feet from the proposed location.
5. The proposed location is owned by Renaud's Country Mart, Inc., of which the
Applicant owns 50% of the shares and his wife owns the other 50%.
6. The Applicant is of good moral character.
7. The Applicant intends to operate the proposed location from 6:00 a.m. to 12:00
a.m.
8. The Applicant is at least 21 years of age, a U.S. citizen, a citizen of the State of
South Carolina, and has maintained his principal residence in the state for at least thirty (30) days
prior to the date of making application for an off-premises beer and wine permit.
9. The Applicant has not had a beer and wine permit or alcoholic beverage license
revoked within two (2) years of the date of his application.
10. Notice of the application appeared in The State, a newspaper of general circulation
in the area of the proposed location, for three (3) consecutive weeks and notice was posted at the
proposed location for fifteen (15) days.
DISCUSSION
South Carolina Code Ann. § 61-9-320(6 ) authorizes the trier of fact, within its discretion,
to determine whether a proposed location is proper for the issuance of a beer and wine permit.
This section further provides that the trier of fact may consider ". . . among other factors, as
indications of unsuitable location, the proximity to residences, schools, playgrounds and
churches." Id. (emphasis added). The Supreme Court of South Carolina has held that ". . . the
proximity of a location to a church, school or residence is a proper ground by itself, on which the
[trier of fact] may find the location to be unsuitable and deny a permit for the sale of beer or wine
at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991);
aff'd, Moore v. South Carolina ABC Comm'n, 308 S.C. 167, 417 S.E.2d 557 (1992). It should
be noted that, in Moore, the Supreme Court vacated the lower court decision of the Court of
Appeals, Moore v. South Carolina ABC Comm'n, 304 S.C. 356, 404 S.E.2d 714 (Ct. App. 1991).
The Court of Appeals had stated that proximity of a school to a proposed location is a sufficient
basis to deny a permit, but only when supported by substantial evidence that the sale of beer and
wine at the location is likely to be detrimental to the public interest because of its proximity to a
school. Moore v. South Carolina ABC Comm'n, 304 S.C. 356, 404 S.E.2d 714 (Ct. App. 1991).
Hence, it is abundantly clear from the Supreme Court decisions, Byers and Moore, that the
proximity of a school to a proposed location is a sufficient basis, without more, on which to deny
a beer and wine permit.
In Moore, the school was located approximately five tenths (.5) of a mile [or 2640 feet]
from the proposed location. Id. at 556. In Byers, the proposed location was within one (1) mile
of a school. Id. at 654. In both cases, the beer and wine permit was denied because of the
proximity of the school to the proposed location. In the instant case, the schools are
approximately less than one tenth (.1) of a mile [460 feet] and three tenths (.3) of a mile [1686
feet], respectively, from the proposed location. This tribunal is not attempting to prescribe a
specific quantitative measure on which to base its decision, but rather use the above referenced
comparisons as guidance.
The proposed location is improper and unsuitable for the issuance of a beer and wine
permit because of its proximity to the schools.
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) authorizes the South Carolina
Administrative Law Judge Division 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) establishes the criteria for the issuance
of a beer and wine permit.
3. Although "proper location" is not statutorily defined, broad discretion is vested in
the Administrative Law Judge 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).
4. "The proximity of a location to a church, school or residence is a proper ground by
itself, on which the [trier of fact] may find the location to be unsuitable and deny a permit for the
sale of beer or wine at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407
S.E.2d 653 (1991); aff'd, Moore v. South Carolina ABC Comm'n, 308 S.C. 167, 417 S.E.2d 557
(1992).
ORDER
Based upon the Findings of Fact, Discussion, and Conclusions of Law, it is hereby:
ORDERED that the off-premises beer and wine permit for a convenience store located at
2406 Augusta Highway, Lexington County is denied.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
June 2, 1995 |
