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. (Supp. 1994) for a hearing on the application of James M.
Kelly. Petitioner seeks an on-premises beer and wine permit (AI 104172) and a club sale and
consumption license ("minibottle license"AI 104167) for a nonprofit organization located within
the city of Westminster at 306 East Main Street, Oconee County, South Carolina.
After timely notice to the parties and protestants, a hearing was held at Greenville
Technical College, Greenville, South Carolina. Several protestants of record appeared. No
protestant timely moved to intervene as a party. The issues considered at the hearing were: (1)
the petitioner's eligibility to hold a beer and wine permit and a minibottle license; (2) the
suitability of the proposed business location; and, (3) the nature of the proposed business activity.
The petitioner's on-premises beer and wine permit and minibottle license are hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following findings of fact by a preponderance of the evidence:
1. Petitioner seeks an on-premises beer and wine permit and a minibottle license for a
nonprofit organization located within the city of Westminster at 306 East Main Street, Oconee
County, South Carolina.
2. Petitioner's application to the South Carolina Department of Revenue and Taxation
("Department") was made a part of the record by reference, without objection.
3. The Wagon Wheel Country Club, Ltd. was declared a non-profit organization duly
organized and certified under the laws of the State of South Carolina by the Secretary of State on
June 16, 1995. The officers of the organization have adopted bylaws which limit membership;
and, the organization is not open to the general public.
4. The proposed location is centrally located downtown, within a commercial area of
Westminster, and within a zoning district that does not preclude private nonprofit clubs. There
are other businesses in the immediate vicinity of the proposed location: Dickson's Tire, Felder
Printing Company, Nichol's Florist, Bill's, a tax company, and a garage.
5. The proposed location has been licensed with several on-premises beer and wine
permits. The most recent permit issued by the Department expired in November of 1992.
6. A drug store located one and one-half (1.5) blocks away from the proposed
location has an off-premises beer and wine permit; and, there is a gas station on Main Street
which has an on-premises beer and wine permit.
7. Petitioner has made arrangements for off-street parking for members and guests of
the proposed location.
8. Petitioner intends to operate the proposed location as a private country music club;
and, petitioner is uncertain of the hours of operation.
9. Petitioner leases the proposed location from Mary C. Stewart.
10. No church, school or playground is within 300 feet of the proposed location. The
nearest church is 459 feet away from the proposed location and the nearest residence is at least
400 feet away from the proposed location.
11. The proposed location is within two (2) blocks of the police station.
12. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of petitioner. The SLED report revealed no criminal violations; and, petitioner has
not engaged in acts or conduct that imply the absence of good moral character.
13. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained his principal residence in the state for at least thirty (30) days prior
to the date of making application for an on-premises beer and wine permit and a minibottle
license.
14. Notice of the application appeared in the Westminster News, a newspaper of
general circulation in the area of the proposed location, for three (3) consecutive weeks and
notice was posted at the proposed location for fifteen (15) days.
15. The Department protested the application and asked this tribunal to consider the
proximity of the residences, but conceded that there were no statutory grounds for denial of the
application.
16. The protestants opposing the application made well organized arguments against
the issuance of the permit and license in question. They cited the following reasons as
justification for denial of petitioner's permit and license request:
a. The city of Westminster has exerted great effort and resources to make
itself attractive to its citizens and promote economic development. The issuance of the permit
and license, according to the protestants, will have a negative impact on existing businesses and
future development.
b. The issuance of the permit and license would: (1) diminish community
standards and impede the use of the sidewalks by walkers, joggers, children, and the elderly; (2)
disrupt and be antithetical to the promotion, protection, and enhancement of family values.
c. The proposed location is incompatible with the surrounding area.
d. The city has only two (2) police officers.
CONCLUSIONS OF LAW AND DISCUSSION
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) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance
of a beer and wine permit.
3. S.C. Code Ann. §§ 61-5-20(3) and 61-5-50 (Supp. 1994) establish the criteria for
the issuance of a minibottle license to a nonprofit organization.
4. Although "proper location" is not statutorily defined, broad discretion is vested in
the Administrative Law Judge Division in determining the fitness or suitability of a particular
location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
5. 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 permit to sell beer and
wine using broad, but not unbridled discretion. Ronald F. Byers v. South Carolina ABC Comm'n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6. The denial of a license or permit to an applicant on the grounds of unsuitability of
location is without evidentiary support when relevant testimony of those opposing the requested
license or permit consists entirely of opinions, generalities, and conclusions not supported by
facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972).
7. There has been no evidentiary showing that the present location is unsuitable or
that the issuance of an on-premises beer and wine permit and a minibottle license would affect the
residents' safety, create traffic problems, or have an adverse impact on the community. The
proposed location and the nature of the business activity are suitable and proper given the
commercial nature of the surrounding area.
8. Petitioner meets all of the criteria enacted by the South Carolina General Assembly
for the issuance of an on-premises beer and wine permit and a minibottle license. It should also be
noted that the Department conceded this point. In making a decision in this matter, this tribunal is
constrained by the record before it and the applicable statutory and case law. The objections
raised by the protestants are mainly rooted in their abhorrence to the proposed location operating
in the first instance and selling alcoholic beverages in the second instance. While this tribunal
acknowledges protestants' opposition to the issuance of the license and permit in question and
also acknowledges their right to hold such sentiments, their grounds are without merit and are not
within the statutory grounds for refusal. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121
(1981). The mere aversion to the sale of alcoholic beverages by the proposed location is not a
sufficient basis on which to deny petitioner's request. Further, there was not a sufficient showing
that the proposed location would require a level of police protection that was not now available.
The grounds proffered by the protestants concerning the negative impact the proposed location
will have upon the community are speculative.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department of Revenue and Taxation issue an on-premises beer and
wine permit and minibottle license to James M. Kelley for a location at 306 East Main Street,
Westminster, South Carolina upon the payment of the required fee(s) and cost(s) by petitioner.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
October 3, 1995 |
