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 John A.
Hartsoe. Petitioner seeks an on-premises beer and wine permit (AI 104054) for a driving
range/pool hall located at 1820 Gold Hill Road, outside the city of Fort Mill, York County, South
Carolina.
After timely notice to the parties and the protestant, a hearing was held at the
Administrative Law Judge Division in Columbia, South Carolina. One protestant of record
appeared, Pastor Jesse Wilson of Tega Cay Baptist Church. The protestant did not move to
intervene as a party. The issues considered at the hearing were: (1) the applicant'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 on-premises beer and wine permit is hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony 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 for a driving range/pool hall
located at 1820 Gold Hill Road, outside the city of Fort Mill, York 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. Petitioner lives at 2904 Farm Road, near the proposed location, where he has lived
for forty-two (42) years.
4. The area surrounding the proposed location is predominantly commercial in
nature.
5. There are several other businesses in the vicinity of the proposed location which
hold beer and wine permits. Directly adjacent to the proposed location is the Country Store,
which holds an on-premises beer and wine permit. Otis's, B&B Food and Spirits, and the Yacht
Club are all within one mile of the proposed location and all hold beer and wine permits. South
Lake Office Park and two mini warehouse storage businesses are also in the direct vicinity.
6. No church, school, or playground is within close proximity to the proposed
location.
7. Tega Cay Baptist Church is located approximately 908 feet away from the
proposed location.
8. Petitioner's proposed daily hours of operation are from 10:00 a.m. to 12:00 a.m.
9. Petitioner owns the proposed location and intends to operate and manage it with
his wife, Carol O. Hartsoe.
10. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of the petitioner and his wife. 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.
11. 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.
12. Petitioner has never held a beer and wine permit or other license for the sale or
consumption of alcoholic beverages.
13. Notice of the application appeared in The Herald, 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.
14. The Department did not oppose the application, as evidenced by its failure to
appear at the hearing.
15. Pastor Jesse Wilson of Tega Cay Baptist Church testified in opposition to the
application. As justification for denial of the beer and wine permit, he cited: (1) his aversion to
the sale of alcohol; and, (2) his belief that the issuance of the permit would present a danger to the
members of his congregation who must drive pass the proposed location to attend Tega Cay
Baptist Church. He believes that patrons of the proposed location will leave the premises under
the influence of alcohol and drive in this state.
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 on-premises beer and wine permit would 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.
7. Petitioner meets all of the criteria enacted by the South Carolina General Assembly
for the issuance of an on-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
objections raised by the protestant are mainly rooted in his abhorrence to the proposed location
selling alcoholic beverages. While this tribunal acknowledges the protestant's opposition to the
issuance of the permit in question and also acknowledges his right to hold such sentiments,
however, his opposition is without merit and 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, the grounds proffered by the protestant 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 to John A. Hartsoe for a location at 1820 Gold Hill Road, outside the city of Fort
Mill, York 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 |
