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 |