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 an application for an
off-premises beer and wine permit for 1084 Reynolds Pond Road, Aiken, South Carolina, by
Jeff A. Herron, et al., filed with the South Carolina Department of Revenue and Taxation
(hereinafter referred to as "DOR"). A hearing was held on August 28, 1995. Protestants
Barbara White and Barbara Coward testified against the application. The issues in controversy
were: (1) the suitability of the proposed business location; and (2) the nature of the proposed
business activity. The permit is granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an off-premises beer and wine permit for a location at 1084 Reynolds
Pond Road, Aiken, South Carolina, having filed an application with DOR, AI #102917.
(2) Notice of the time, date, place, and subject matter of the hearing was given to
Petitioner, protestants, and DOR.
(3) Jeff A. Herron is the Petitioner, on behalf of a partnership consisting of
Jeff A. Herron, Sandra W. Herron, Paul E. Herron, and Joan B. Herron, d/b/a Herron's Country
Store. The partnership is a group of family members jointly owning and operating the proposed
location.
(4) The partnership has owned and operated the proposed location for approximately
eight months.
(5) Petitioner is currently operating the proposed location as a convenience and general
store.
(6) The proposed location also has a grill in the back of the establishment, with seating
for approximately 20 people.
(7) The proposed location has been open and operating as a convenience store and
licensed to sell beer and wine for off-premises consumption in the name of Mary L. Taylor, d/b/a
Funstop Express, since 1993.
(8) There have been no ABC violations or any law enforcement problems at the proposed
location since it opened in 1993.
(9) The proposed location is located in unincorporated Aiken County, approximately
three miles from the City of Aiken.
(10) A flea market is located next to the proposed location, approximately 300 feet away
on Reynolds Pond Road.
(11) The "Wash Express," a Laundromat, is located across the street from the proposed
location, approximately 225 feet away.
(12) The "Hair Express," a hair salon, is located adjacent to and shares a common wall
with the proposed location.
(13) The proposed location is open for business 7:00 a.m. - 9:00 p.m., Monday -
Saturday.
(14) The Ridgecrest subdivision, which includes approximately 75-80 residential homes,
is located in close proximity to the proposed location.
(15) Many customers of the proposed location live in the Ridgecrest neighborhood.
(16) Barbara Cowart resides at 22 Ridgecrest Road, approximately 800 feet from the
proposed location.
(17) Barbara White resides at 21 Ridgecrest Road, approximately 975 feet from the
proposed location.
(18) A litter problem exists on Ridgecrest Road, with food and beverage containers
strewn along Ridgecrest Road; however, whatever litter problem exists is not directly related to
the sale of beer and wine at the proposed location.
(19) The proposed location provides trash cans and posts "no littering" signs on its
premises.
(20) There are seven other licensed locations within .5 miles of the proposed location,
including another supermarket and two convenience stores in close proximity which hold off-premises beer and wine permits.
(21) Petitioner and each of the partners are over twenty-one years of age, are citizens of
the State of South Carolina, and have maintained their principal residences in South Carolina for
more than thirty days.
(22) Petitioner and each of the partners have not had a permit/license revoked in the last
five years.
(23) Petitioner and each of the partners are of good moral character.
(24) 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.
(25) 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) 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, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
(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 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).
(5) The proposed location is suitable and proper, in light of the past history of the
location as a licensed premises and the lack of relevant evidence indicating unsuitability of the
location.
(6) The proposed business activity is suitable and proper, in light of the fact that the
permit sought is for off-premises consumption, and beer and wine is sold along with other grocery
and convenience items.
(7) Applicant meets the statutory requirements for issuance of a beer and wine permit.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Petitioner the off-premises beer and
wine permit applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
September 13, 1995
Columbia, South Carolina |
