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 Linda B.
Tyler. Petitioner seeks an on-premises beer and wine permit (AI 103908) for a driving range
located at 3055 Highway 21, outside the city of Rock Hill, 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, Dr. Tommy Huddleston, Pastor of Catawba Baptist Church. 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 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 located at
3055 Highway 21, outside the city of Rock Hill, York County, South Carolina.
2. The South Carolina Department of Revenue and Taxation's ("Department") file
was made a part of the record by reference, without objection.
3. The proposed location is situated 1230 feet off of Highway 21, a four lane well
traveled thoroughfare; and, the area in which the proposed location is situated is zoned
commercial/residential.
4. There are several other businesses in the vicinity of the proposed location which
hold beer and wine permits. Little Giant and the Pantry are less than two miles west of the
proposed location, on Highway 21, and both hold off-premises beer and wine permits.
5. No church, school, or playground is within close proximity to the proposed
location.
6. Catawba Baptist Church is located approximately 2112 feet away from the
proposed location and the church is not visible from the proposed location, nor is the proposed
location visible from the church.
7. Petitioner leased the proposed location from Palmetto Hills Golf, Inc., of which
her husband, John Tyler, is the president.
8. Petitioner has operated and managed the proposed location since 1991 with daily
hours of operation from 10:00 a.m. to nightfall.
9. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of the petitioner and her husband. The SLED report revealed no criminal violations;
and, neither petitioner nor her husband have engaged in acts or conduct that imply the absence of
good moral character.
10. Petitioner is at least 50 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained her 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. Petitioner was born in
Rock Hill, South Carolina.
11. Petitioner currently holds an off-premises beer and wine permit for Leslie Mart and
has held this permit for fifteen (15) years without being cited for any violations.
12. Notice of the application appeared in The State, 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.
13. The Department did not oppose the application, as evidenced by its failure to
appear at the hearing.
14. Dr. Tommy Huddleston, Pastor of Catawba Baptist Church, presented witnesses
who testified in opposition to the application. As justification for denial of the beer and wine
permit, they cited: (1) their aversion to the sale of alcohol; (2) their concern for the safety of the
two hundred (200) children who attend the Catawba Baptist Church Day Care; and, (3) their
concern that patrons of the proposed location might drink and drive in an impaired 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. This tribunal acknowledges the opposition to the issuance of the
permit in question and also acknowledges the right to hold such sentiments, however, this
opposition is without merit and not within the statutory grounds for refusal of a permit. 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 might 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 Linda B. Tyler for a location at 3055 Highway 21, outside the city of Rock Hill,
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
November 1, 1995 |
