ORDERS:
ORDER OF DISMISSAL
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 Lewis J.
Boniface. Petitioner seeks an off-premises beer and wine permit (AI 104158) for a convenience
store located within the city of Ware Shoals at 7604 Highway 25 North, Greenwood County,
South Carolina.
After timely notice to the parties and protestant, a hearing was held at the Administrative
Law Judge Division, Columbia, South Carolina. The protestant did not move to intervene as a
party. The issues considered at the hearing were: (1) the petitioner's eligibility to hold a beer and
wine permit; (2) the suitability of the proposed business location; and, (3) the nature of the
proposed business activity. The petitioner's off-premises beer and wine permit is 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 off-premises beer and wine permit for a convenience store
located within the city of Ware Shoals at 7604 Highway 25 North, Greenwood 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 proposed location is located directly off of Highway 25, which is a four lane
major thoroughfare, within a commercial/industrial area. There are other businesses and
industries in the immediate vicinity of the proposed location: Southside Truck Stop, Honea Path
Corporation, Carolina Dye Corporation, and Mount Vernon Mills.
4. The proposed location is owned by Country Corner Express, Inc. of which Lewis
J. and Lisa L. Boniface are the shareholders.
5. No church, school or playground is within close proximity to the proposed
location.
6. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of petitioner and his wife, Lisa L. Boniface. The SLED report revealed no criminal
violations; and, neither petitioner nor his wife have engaged in acts or conduct that imply the
absence of good moral character.
7. 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 off-premises beer and wine permit.
8. Notice of the application appeared in The Observer, 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.
9. The Department did not oppose the application, as evidenced by its failure to
appear at the hearing.
10. The protestant, Lamar Cain, testified in opposition to the issuance of the permit in
question. He cited his aversion to the sale of alcohol for opposing this application, although he
realizes that such opposition is not a legal justification to deny the permit.
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. 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).
4. 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).
5. 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).
6. There has been no evidentiary showing that the present location is unsuitable or
that the issuance of an off-premises beer and wine permit 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/industrial nature of
the surrounding area.
7. Petitioner meets all of the criteria enacted by the South Carolina General Assembly
for the issuance of an off-premises beer and wine permit. In making a decision in this matter, this
tribunal is constrained by the record before it and the applicable statutory and case law. The
objection raised by the protestant is mainly rooted in his abhorrence to the proposed location
selling alcoholic beverages. While this tribunal acknowledges protestant's opposition to the
issuance of the permit in question and also acknowledges his right to hold such a sentiment, his
opposition, however, is without merit and is 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.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department of Revenue and Taxation issue an off-premises beer and
wine permit to Lewis J. Boniface for a location at 7604 Highway 25 North, Ware Shoals,
Greenwood County, 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 18, 1995
Columbia, South Caroplina |
