South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Gary M. McClam and W. DeWitt McKenzie, Jr., d/b/a M & M vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Gary M. McClam and W. DeWitt McKenzie, Jr., d/b/a M & M

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0496-CC

APPEARANCES:
Kenneth E. Allen, Attorney for Petitioner

Rev. Edward McLeod and Rev. Wayland Owens

Spokespersons for Protestants
 

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 a retail liquor license and on-premises beer and wine permit at Route 2, Box 110B, Kingstree, South Carolina, by Petitioners filed with the South Carolina Department of Revenue and Taxation (DOR). A contested case hearing was held on September 27, 1995. Pursuant to Interlocutory Order of this Court dated September 29, 1995, DOR (through SLED) was required to re-measure the distance between the proposed location and St. Mary United Methodist Church and submit to this Court, Petitioner, and Spokespersons for the Protestants, a map which includes a drawing of the line of measurement with distances computed shown. By letter dated October 10, 1995, DOR submitted a report and revised map illustrating the exact distances requested and explaining the method of measurement. The record is now complete. Upon review of the evidence and applicable law, the license and permit are granted.





FINDINGS OF FACT

By a preponderance of the evidence, I find these facts:

(1) Petitioner seeks a retail liquor license and on-premises beer and wine permit for Route 2, Box 110B, Kingstree, South Carolina, which is located at the intersection of U.S. Highway 527 and State Road S-45-748, having filed applications with DOR, AI #103791 and #103792.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the Petitioner, protestants, and DOR.

(3) DOR did not appear at the hearing and did not indicate any opposition to the issuance of the license and permit sought.

(4) The DOR file for the applications in issue, including the applications, SLED investigative information, and written protests, was transmitted to the Administrative Law Judge Division, and incorporated into the record of the hearing.

(5) The proposed location is located in a rural, unincorporated portion of Williamsburg County.

(6) Petitioners are primarily in the logging business.

(7) Petitioners currently lease and operate a business location known as M & M Country Store at Route 1, Box 395 B, Cades, South Carolina, located approximately 5.5 miles from the proposed location.

(8) The Cades location has been licensed for the sale of beer and wine for on-premises consumption for two years without incident or violation.

(9) The Cases location is operated as a family-oriented general store, selling food items, gas, logging supplies, and convenience items. The store also has a lunch counter, pool tables and beer for sale for on and off-premises consumption. In addition, the Cades location acts as the company offices for the family logging business.

(10) Petitioners have constructed the proposed location and seek to move their business operations to the proposed location because the Lessor refused Petitioners request to enlarge the facilities at the Cades location. Petitioners own the property upon which the proposed location is situated.

(11) Petitioners seek to move their entire business operation to the proposed location and to operate it in essentially the same manner as before.

(12) Cheryl McClam, wife and sister of Petitioners, is the manager of the Cades location and intends to be the manager of the proposed location.

(13) The proposed location is bounded by woods on the north and east, by Highway 527 on the south, and State Road S-45-748 on the west.

(14) Petitioner DeWitt McKenzie, Jr., lives directly across Highway 527 from the proposed location.

(15) The intended hours of operation for the proposed location are: 5 a.m. - 11 p.m., Monday - Saturday; 7:00 a.m. - 9:30 a.m., 1:00 p.m. - 6:00 p.m., Sunday. Liquor, beer and wine sales are prohibited on Sundays.

(16) There are no other licensed locations within four miles of the proposed location.

(17) There are no schools or playgrounds within close proximity to the proposed location.

(18) Protestants oppose the issuance of the license and permit because of the proximity of the proposed location to churches and residences in the area and because of concerns that the sale of liquor, beer and wine will have a detrimental effect upon the youth in the area.

(19) Pursuant to Interlocutory Order of this Court dated September 29, 1995, DOR submitted to this Court, by letter dated October 10, 1995, a report and revised map prepared by Agent W.W. Scott of the SLED Alcohol Enforcement Unit, illustrating the exact distances from the proposed location and area churches and documented the method of measurement.

(20) St. Mary United Methodist Church, on Highway 527 is located approximately 800 feet from the proposed beer and wine location and 840 feet from the proposed retail liquor location.

(21) Beulah A.M.E. Church is located approximately 3,668 feet from the proposed location.

(22) First Freewill Baptist Church is located approximately 4,700 feet from the proposed location.



(23) Evidence of the potential negative impact of liquor, beer and wine sales by Petitioners at the proposed location is based upon speculation, opinion, and conjecture.

(24) The applicants are over twenty-one years of age, residents of the State of South Carolina, and have maintained their principal residence in South Carolina for more than thirty days.

(25) The applicants have not had a permit revoked in the last two years.

(26) 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) 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 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, 281 S.C. 566, 316 S.E.2d 705 (Ct. 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) When the relevant testimony of those opposing the permit consists of opinions, generalities, and conclusions not supported by fact, denial of the permit on the ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).

(9) The proposed location is suitable and proper, in light of the past history of the Petitioners at another licensed location, the family-oriented nature of the business, the rural nature of the surrounding area, and the lack of relevant factual evidence to indicate unsuitability.

(10) The proposed business activity is suitable and proper, in light of the intended hours of operation and the mixed function of the business premises.

(11) Petitioners meet 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 retail liquor license and on-premises beer and wine permit applied for.



_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

October 16, 1995

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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