ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-1-55, et seq. (Supp. 1993) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1993) for a
contested case hearing. The Applicant, Nancy B. McCummings, seeks an on-premise beer and wine
permit for Mac's. A hearing was held on November 28, 1995, at the office of Administrative Law
Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The application requested by the Petitioner is denied.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. Notice of the time, date, place and subject matter of the hearing was
given to the Petitioner, Protestants, and South Carolina Department
of Revenue and Taxation.
3. The Petitioner seeks an on-premise beer and wine permit for Mac's
located at 2504 Atlas Road, Columbia, South Carolina. The location
is on the corner of Atlas Road and Bibleway Drive.
4. The Petitioner seeks this beer and wine permit in a primarily middle to
low income residential area. The location has held a permit since
January, 1966. However since 1993 the store has been closed, and
for several years before its closing it was opened only occasionally.
When the store was operating drug activity was common in the area.
Additionally, individuals frequently loitered and drank alcohol outside
of the location.
5. The Bibleway Church of Atlas Road ("Church") is located on the
block adjacent to the proposed location. The Church was established
one year after the location was permitted. Since that time the Church's
property has moved closer to the proposed location. The Church
acquired all the property on the block surrounding the location. The
Church also now operates a day care center on the block directly
across from the proposed location.
6. The Church also recently built the Bible Way Church Family Center
("Life Center"). The Life Center is located on the same city block
approximately 120 feet from the proposed location. When the Life
Center was built the location was basically not operating and as such
was not selling beer or wine. Activities at the Life Center include
programs for individuals recovering from the abuse of alcohol or
drugs, youth who have had "trouble with the law" and recreational
activities for the day care students and the local neighborhood
children. The day care students walk past the proposed location to get
to the Life Center.
7. The Church maintains a playground between the Life Center and the
proposed location. The playground is approximately 20 feet from the
proposed location.
8. The Richland County School District located the C. R. Neal Learning
Center approximately 200 feet from the proposed location in 1989.
The Learning Center is an alternative school which offers education
for individuals unable to succeed in a traditional school setting.
Those students include individuals who have been expelled from
schools, who are in trouble with the law or are single mothers ages
17-20 on AFDC. At least 50% of the students at the Learning Center
have had drug or alcohol problems. In August of 1992, when the
store was occasionally open, the students would often leave the
Learning Center and clandestinely go to the proposed location.
9. The expansion of the Church facilities and the addition of the C.R.
Neal Learning Center has resulted in a change in the area of the
proposed location. Specifically, the Life Center was built after the
proposed location basically abandoned the sell of beer and wine. The
proposed location is now unsuitable for a beer and wine permit
because of its proximity to the Life Center and the playground, and
the resulting negative impact that would occur upon the local
community.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1994) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the
Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1994) grants to the Administrative
Law Judge Division the powers, duties and responsibilities as hearing
officer in protested and contested matters governing alcoholic
beverages, beer and wine.
3. S.C. Code Ann. § 61-9-320 (Supp. 1994) sets forth the requirements
for the issuance of an off-premise beer and wine permit.
4. Although "proper location" is not statutorily defined, broad discretion
is vested in the trier of fact in determining the fitness or suitability of
a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595,
281 S.E.2d 118, 119 (1981).
5. As the trier of fact, the Administrative Law Judge is authorized to
determine the fitness or suitability of the proposed business location
of a Petitioner for a permit to sell beer and wine using broad, but not
unbridled, discretion. Byers v. South Carolina ABC Commission, 281
S.C. 566, 316 S.E.2d 705, (Ct. App. 1984).
6. The determination of suitability of location is not necessarily a
function solely of geography. It involves an infinite variety of
considerations related to the nature and operations of the proposed
business and its impact upon the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335, (1985).
7. Permits and licenses issued by the state for sale of liquor, beer and
wine are not rights or property but are, rather, privileges granted in
the exercise of the state's police power to be used and enjoyed only so
long as the restrictions and conditions governing them are followed.
Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26 S.E.2d 22 (1943).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED AND ADJUDGED that the application of Nancy B. McCummings for an on-premise beer and wine permit be denied.
________________________________
Ralph King Anderson, III
Administrative Law Judge
January 3, 1996
Columbia, South Carolina |
