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. (1986 & Supp. 1994) upon an application for an off-premises beer and wine permit for 3109 West Oak Highway, Westminster, South Carolina, by
Quentin R. Sisk, Hasty Mart of SC, Inc., d/b/a Hasty Mart #7, filed with the South Carolina
Department of Revenue and Taxation (hereinafter referred to as "DOR").
A hearing was held in Pickens, South Carolina, at the Pickens County Courthouse on
November 20, 1995. The issues considered were: (1) the applicant's eligibility to hold a permit;
(2) the suitability of the proposed business location; and (3) the nature of the proposed business
activity. Testifying in support of the application were: Quentin Sisk, Petitioner and store
manager; and Jim Dooley, General Manager of Hasty Mart of SC and Georgia. Testifying in
opposition to the application were: Horace King, a resident of the community; Joe Davis, a
resident of the community, residing across the street from proposed location; Rev. W. Calvin
King, Protestant-Intervenor and Pastor of Retreat Baptist Church; Sam Bass, Principal of West
Oak High School; Oconee County Sheriff James Singleton; and Mark Davis, West Oak High
School Student Body President. Based upon the finding and conclusion that the proposed
location is unsuitable, the permit application is denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an off-premises beer and wine permit for a location in Oconee
County, at 3109 West Oak Highway, Westminster, South Carolina, having filed an application
with DOR, AI #104615.
(2) Notice of the time, date, place, and subject matter of the hearing was given to all
parties and protestants.
(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 DOR file was incorporated into the record of the hearing.
(5) The proposed location is in a predominately residential area of unincorporated
Oconee County known as the Retreat community, near the Town of Westminster.
(6) Petitioner operates the proposed location as a convenience store and gas station.
(7) Hasty Mart of SC, Inc. is a convenience store chain with stores in South Carolina and
Georgia.
(8) Hasty Mart of SC, Inc. currently has three (3) locations licensed to sell beer and wine
in South Carolina.
(9) Quentin R. Sisk, the manager of the proposed location, is a military retiree who has
worked the past twenty-one (21) years in the convenience store business without any alcoholic
beverage law violations.
(10) The site of the proposed location has served as a community grocery or convenience
store for approximately fifty (50) years, under approximately six (6) different owners, but has
never been licensed to sell beer or wine.
(11) There are no other licensed locations in the Retreat community.
(12) The proposed location is located within four hundred feet (400') of six residences.
(13) The proposed location is located within five hundred twenty-eight feet (528') of
Retreat Baptist Church.
(14) The proposed location is located within approximately eleven hundred feet (1100') of
West Oak High School.
(15) West Oak High School is a public high school with an enrollment of 881 students,
with class rooms, administration buildings, bus and automobile parking lots, and athletic fields on
the campus.
(16) The applicant is over twenty-one (21) years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than one year.
(17) The applicant has not had a permit revoked in the last thirty (30) days.
(18) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three (3) consecutive weeks and was posted at the proposed location
for fifteen (15) days.
(19) The applicant, who is the manager of the business, is of suitable character and
temperament to hold a beer and wine permit.
(20) The proposed location is unsuitable for the sale of beer and wine.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) The South Carolina Administrative Law Judge Division is empowered to hear this
case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and Chapter 23 of Title I of the 1976
Code, as amended.
(2) S.C. Code Ann. §§ 61-9-310 and 61-9-320 (Supp. 1994) provide the criteria to be
met for issuance of a beer and wine permit.
(3) Except for establishing that the proposed location is a proper one for the sale of beer
and wine, Petitioner meets all statutory requirements set forth in S.C. Code Ann. §§ 61-9-310 and
61-9-320 (Supp. 1994).
(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. S.C. ABC Commission, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
(5) 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).
(6) The proposed location is unsuitable for the sale of beer and wine because of the
cumulative effect of the following factors: the rural residential nature of the surrounding
community; the close proximity of residences, a school, and a church; the absence of any other
licensed locations in the immediate vicinity; the existence of students and small children in the
area; and the overall adverse impact on the community.
(7) The proximity of residences, schools, playgrounds, or churches is a proper ground by
itself to deny a permit to a location. William Byers v. S.C. A.B.C. Commission, 305 S.C. 243,
407 S.E.2d 476 (Ct. App. 1984).
(8) If the rural residential character of the immediate vicinity would be adversely affected
by the sale of beer and wine at the proposed location, denial is appropriate. Palmer v. S.C. ABC
Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1985); Roche v. S.C. ABC Commission,
263 S.C. 451, 211 S.E.2d 243 (1975).
(9) The existence of numerous children in the area of the proposed location is grounds to
find a location unsuitable for the sale of beer and wine. See Palmer v. S.C. ABC Commission,
282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1985).
ORDER
IT IS THEREFORE ORDERED that the off-premises beer and wine permit applied for
is denied.
________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
December ___, 1995
Columbia, South Carolina |
