ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
§§ 1-23-310, et seq., (1986 & Supp. 1994) upon an application for an off-premises beer and wine
permit for 2289 Pond Branch Road, Leesville, South Carolina, by William C. Hagerman, filed
with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR").
A hearing was held on October 4, 1995. Protestants 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. Upon review of the evidence and application of the pertinent law,
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 2289 Pond Branch Road,
Leesville, South Carolina, having filed an application with DOR, AI #104157.
(2) Notice of the time, date, place, and subject matter of the hearing was given to
Petitioner, protestants, and DOR.
(3) DOR did not appear at the hearing; however, DOR filed the following statement
with the Court:
But for the unanswered question of suitability of location,
the Department would have issued this licenses/permit. As the
department has no evidence concerning suitability of this location
it does not intend to appear at the hearing. Its failure to appear at
the hearing does not indicate a waiver of its rights as a party to
this action, and is not to be considered a default under Rule 23
of the Administrative Law Judge Division. If the Petitioner appeals
the Court's decision in this matter, and no additional parties have
been admitted, the department will actively participate as a party
in the appeal.
(4) The proposed location is a newly constructed structure which Petitioner intends to
operate as a convenience and grocery store.
(5) The proposed location is located in unincorporated Lexington County, near exit 44 of
Interstate Highway 20, approximately seven miles from the Town of Batesburg-Leesville. The
immediate vicinity is a mixed rural, commercial, and residential area.
(6) The following commercial businesses are located on Pond Branch Road, within 1.5
miles of the proposed location: 44 Truckstop; Hoover Auto Repair; Rawls Auto Auction; and
Quality Marine.
(7) A trailer park and several permanent residential dwellings are located within 1,000
feet of the proposed location.
(8) Petitioner lives approximately .1 mile from the proposed location.
(9) No one residing within eyesight of the proposed location appeared at the hearing to
protest the issuance of the permit
(10) The proposed location will be open for business 6:00 a.m. - 10:00 p.m., daily.
(11) Protestants oppose issuance of the permit because of the following concerns:
proximity of the proposed location to Bethlehem Lutheran Church; potential traffic problems;
potential litter problems; and the existence of children and teenagers in the vicinity.
(12) Bethlehem Lutheran Church is located approximately 1 mile from the proposed
location, at 210 Bethlehem Circle.
(13) 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.
(14) Petitioner has not had a permit/license revoked in the last five years.
(15) Petitioner, who plans to manage the store, is of good moral character.
(16) 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) 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.2d 335 (1985).
(5) 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).
(6) The proposed location is suitable and proper, in light of the growing commercial
nature of the area, the distance of the location form the church, the lack of opposition from
neighboring residents, and the lack of relevant evidence indicating unsuitability of the location.
(7) 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.
(8) Petitioner 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
October 13, 1995
Columbia, South Carolina |
