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 pursuant to the application of
Norma M. Kelley. The applicant seeks an on-premises and off-premises beer and wine permit
(AI 102804) for a gameroom located at Route 1, Box 25, Highway 278, Varnville, county of
Hampton, South Carolina.
After timely notice to the parties and the protestant, a hearing was held at the
Administrative Law Judge Division in Columbia, South Carolina. Reverend Nancy Lee, the
protestant of record, appeared at the hearing. The protestant moved to intervene as a party and
without objection was made a formal party. 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 on-premises and off-premises
beer and wine permit for Route 1, Box 25, Highway 278, Varnville, county of Hampton, South
Carolina is hereby granted.
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 on-premises and off-premises beer and wine permit for a
gameroom located at Route 1, Box 25, Highway 278, Varnville, county of Hampton, South
Carolina.
2. The South Carolina Department of Revenue and Taxation's ("Department") file
was made a part of the record by reference with the consent of the petitioner and the intervenor.
3. The proposed location is situated in a rural community with no church, school, or
playground within close proximity. The proposed location is primarily surrounded by residences.
Other businesses in the vicinity include: a welding shop, a barber shop, and a flower shop.
Without objection, a petition dated July 8, 1995 was proffered which evidences that virtually none
of these residents have any objection to the applicant being issued a beer and wine permit. The
petition includes signatories, representing twenty-three (23) households, favorable to the
applicant's beer and wine application; and, only three (3) households in the community were not
represented on the petition.
4. The nearest ministry building, which the intervenor has characterized as not being
a church, is approximately 1320 feet away from the proposed location, at the "dead end" of
Channell Street. This ministry does not have set hours of operation, but operates as needed to
help those who are "chemically" dependent. The intervenor resides near the ministry building.
Her residence is approximately 1800 feet away from the proposed location. She cited incidents of
individuals parking, littering, and relieving themselves on her property as problems that occurred
when the proposed location was previously licensed.
5. The proposed location is leased to the applicant by Jessie Tuten.
6. Jessie Tuten previously held an on-premises and off premises beer and wine permit
at the proposed location for approximately ten years from 1979-1989. The proposed location
was licensed in the name of Jimmy Revis for approximately three (3) years after Jessie Tuten
managed and operated the proposed location.
7. The applicant and her husband, Robert Kelly, are of good moral character and will
manage and operate the gameroom.
8. The applicant intends to operate the proposed location during the hours of 11:00
a.m. to 12:00 a.m.
9. The applicant is at least 21 years of age, a U.S. citizen, a citizen of the State of
South Carolina, and has maintained her principal residence in the state for at least thirty (30) days
prior to the date of making application for an on-premises and off-premises beer and wine permit.
10. The applicant has not had a beer and wine permit or alcoholic beverage license
revoked within two (2) years of the date of her application.
11. Notice of the application appeared in The Hampton County Guardian, 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.
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) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance
of a beer and wine permit.
3. 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. South Carolina ABC Comm'n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984); Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281
S.E.2d 181 (1981).
4. 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 operations 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); Schudel v. S.C. ABC Commission, 276 S.C. 138,
276 S.E.2d 308 (1981).
5. The evidence in this case did not establish that the issuance of a beer and wine
permit to the applicant for its gameroom would have an adverse impact on the community. As it
relates to suitability of the location, if the statutory criteria are otherwise satisfied, the application
must not be denied without sufficient evidence of (1) an adverse impact on the community, (2)
incompatibility of the nature and operation of the business activity of the proposed location with
the surrounding community, or (3) any other indicator of unsuitability of the location. While the
protestant cited incidents which may or may not have resulted from the proposed location being
previously licensed, such contentions do not rise to a concrete, definitive or sufficient evidentiary
level to deny the permit request of the applicant. Moreover, the community in the instant case
overwhelmingly favors the applicant being granted a beer and wine permit. This favorable
community sentiment indicates that those residents in close proximity to the proposed location
and most likely to be affected by it do not consider the proposed location to be adverse to or
incompatible with their community.
6. The proposed location and business activity are suitable and proper.
7. The applicant satisfies all of the statutory requirements for holding an on-premises
and off-premises beer and wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premises and off-premises beer and wine permit for a gameroom
located at Route 1, Box 25, Highway 278, Varnville, county of Hampton, South Carolina is
granted.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an
on-premises and off-premises beer and wine permit upon the payment of the required fee(s) and
cost(s) by the applicant.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
July 26, 1995 |
