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 138 James Avenue, Goose Creek, South Carolina, by Shirley G. Givens, filed with the
South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A
hearing was held on October 3, 1995. Protestants from the First Baptist Church of Goose Creek
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 138 James Avenue, Goose
Creek, South Carolina, having filed an application with DOR, AI #103455.
(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 located in the City of Goose Creek in a predominately
commercial area.
(5) There are at least three other licensed locations on James Avenue within .5 mile of the
proposed location, including a Bi-Lo supermarket and two gas and convenience stores in close
proximity which hold off-premises beer and wine permits.
(6) The Bi-Lo supermarket is located in a strip shopping center approximately 150' - 200'
behind the proposed location. The Bi-Lo and the proposed location are separated only by a
parking lot.
(7) The proposed location has been open and operating as a service station for many
years.
(8) Petitioner recently leased the premises from Amoco Oil Company, renovated the
premises, and has been operating the proposed location since December 22, 1994, as a service
station (primarily) and a convenience store (secondarily). The business offers auto repair,
gasoline, soft drinks, and snacks for sale.
(9) Petitioner owns and operates two other Amoco Stations in the greater Charleston
area, each licensed to sell beer and wine for off-premises consumption.
(10) James Avenue is a busy thoroughfare, having six lanes of traffic and a speed limit of
45 miles per hour.
(11) Pedestrian crosswalks are located at the intersection of James Avenue and
Thomason Boulevard, allowing persons to cross from First Baptist Church to the proposed
location.
(12) Because of the volume of traffic, the number of lanes, and the configuration of the
intersection, pedestrian crossing of James Avenue is difficult.
(13) The James Avenue traffic corridor is a natural buffer zone between the church and
the proposed location. The volume of automobile traffic at the intersection already acts as a
deterrent to pedestrian travel across James Avenue.
(14) The First Baptist Church of Goose Creek is located on the opposite side of James
Avenue from the proposed location, approximately two hundred thirty-five feet (235') away.
(15) First Baptist Church conducts worship, educational, and other church-related
activities at the church and on a daily and nightly basis.
(16) First Baptist Church operates a daycare and preschool facility in the rear of the
church property, with approximately 100 children in attendance.
(17) First Baptist Church opposes the issuance of the permit because of the proximity of
the proposed location to the church and its daycare and preschool facility and because of concerns
that the sale of beer and wine at the proposed location will create traffic and pedestrian safety
problems in the vicinity.
(18) First Baptist Church has experienced no problems or complaints with the sale of beer
and wine at the Bi-Lo.
(19) Concerns about the sale of beer and wine at the proposed location materially
increasing traffic in the vicinity is based upon speculation and is unsupported by the evidence.
(20) The sale of beer and wine at the proposed location will not materially affect the
operation of the church, daycare, or preschool, nor will it create a safety hazard to the
parishioners, staff, or students.
(21) The proposed location is suitable for the sale of beer and wine for off-premises
consumption.
(22) Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained her principal residence in South Carolina for more than thirty days.
(23) Petitioner has not had a permit/license revoked in the last five years.
(24) Petitioner is of good moral character.
(25) 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) The proposed location is suitable and proper, in light of the commercial nature of the
vicinity, the physical buffer created between the church and the location by James Avenue, 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, that beer and wine will be sold along with other
convenience items, that Petitioner has experience in operating similarly established licensed
locations, and that the sale of beer and wine will constitute only a minor portion of the business.
(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
October 13, 1995
Columbia, South Carolina |
