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. (1986 & Supp. 1994) upon applications for a retail liquor
license and an off-premises beer and wine permit filed with the South Carolina Department of
Revenue and Taxation (hereinafter referred to as "DOR") by Garris E. Hardy. A hearing was held
on July 13, 1995. The issues in controversy were: (1) the suitability of the proposed business
location and (2) the nature of the proposed business activity. The permit and license are granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner filed an application for an on-premises beer and wine permit for a location
at Route 1, Box 556 A, Manning, South Carolina, having filed an application with DOR,
AI #102267.
(2) At the hearing, without objection, Petitioner amended his filing to an application for
an off-premises beer and wine permit.
(3) Petitioner seeks a retail liquor license for a location at Route 1, Box 556 B, Manning,
South Carolina, having filed an application with DOR, AI #102268.
(4) The two above-referenced proposed locations, Route 1, Box 556 A and Box 556 B,
Manning, South Carolina, are separate but adjacent businesses which occupy the same building in
adjoining stores.
(5) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(6) Petitioner is currently operating the proposed location at Route 1, Box 556 A,
Manning, South Carolina, as a convenience store.
(7) The proposed locations have been previously licensed to sell beer and wine and liquor
by former owners and managers for most of the past fifteen years.
(8) One of the previous owners/licensees is Clarence Wheeler, Sr., Petitioner's father-in-law.
(9) The proposed locations operated without violation or incident when previously
licensed.
(10) Petitioner also owns and operates an on-premises beer and wine licensed location in
Manning.
(11) There are two other licensed locations within .4 miles of the proposed location,
including one across the street from the proposed location.
(12) The proposed location is in unincorporated Clarendon County, in the community of
Paxville, a rural area with some residential and commercial dwellings in the vicinity.
(13) There are no churches, schools, or playgrounds within 500 feet of the proposed
locations.
(14) Petitioner's application is opposed by Rev. Eugene T. Mosier and Mr. Ray Thigpen,
residents of Paxville. Both protestants expressed concerns regarding the likelihood of an increase
in crime, safety, and noise problems if the license/permit were issued..
(15) Petitioner 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.
(16) Petitioner has not had a permit/license revoked in the last five years.
(17) Petitioner is of good moral character.
(18) 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.
(19) DOR did not appear at the hearing and did not express opposition to the issuance of
the permit.
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) The issuance of retail liquor licenses are authorized under the provisions of S.C. Code
Ann. § 61-3-410(3) (Supp. 1994).
(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 retail liquor store located
outside of a municipality must be a minimum of five hundred (500') feet from any church, school,
or playground. 23 S.C. Code Ann. Regs. 7-11 (1976) provides the method for measuring the
distances referred to in § 61-3-440. No schools, churches, or playgrounds are within the
prescribed proximity to render the proposed location unsuitable.
(6) 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).
(7) 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.2d 335 (1985).
(8) The proposed location is suitable and proper, in light of the past history of the
location and the existence of other licensed locations in the vicinity.
(9) The proposed business activity is suitable and proper, in light of the fact that the
permit application was amended to off-premises consumption and the retail liquor license does not
allow for on-premises consumption.
(10) Petitioner meets the statutory requirements for issuance of a beer and wine permit
and retail liquor license.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Petitioner the off-premises beer and
wine permit and retail liquor license applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July __, 1995
Columbia, South Carolina |