ORDERS:
AMENDED DECISION AND ORDER
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. 1995) and S. C. Code Ann. §§1-23-310 et seq. (Rev.1986 and Supp. 1995) for
a contested case hearing. The Petitioner, 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 was denied. Subsequently, the Petitioner made a Motion for Reconsideration of this
Division's Order. A hearing was held on March 4, 1996 at which the Petitioner presented additional
evidence in support of her case.
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.
2. The Petitioner seeks an on-premise beer and wine permit for Mac's
located at 2504 Atlas Road, Columbia, South Carolina. Mac's is
located on the corner of Atlas Road and Bibleway Drive. The store
was sold to the Petitioner by Maxine Drake who currently holds a
beer and wine permit for the location. Ms. Drake has held a permit
for this location from November 1966 until the present. Her store
remained continuously open from November 1966 until Ms. Drake
closed its operation in April. 1994.
3. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp.
1995) concerning the residency and age of the Petitioner are properly
established. Furthermore, the Petitioner has not had a permit or
license revoked within the last two years and notice of the application
was lawfully posted both at the location and in a newspaper of
general circulation.
4. The Petitioner is of sufficient moral character to receive a beer and
wine permit.
5. There have been no recent law enforcement problems either
specifically at this location or related to this location.
6. 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 originally permitted. Recently, the
Church acquired all the property on the block surrounding the
proposed location.
7. The Church 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. 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 day care students and local
neighborhood children. Furthermore, the day care students often walk
past the proposed location to get to the Life Center. However, the
proposed location was selling beer and wine before, during and after
the construction of the Life Center. The Church, therefore, chose to
build the Life Center knowing that the proposed location was
permitted to sell beer and wine.
8. When constructing the Life Center, the Church built a playground
between the Life Center and the proposed location. The playground
is approximately 20 feet from the proposed location. Again, however,
the proposed location was selling beer and wine before, during and
after the playground construction.
9. Richland County 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 who are single mothers between the
ages of 17-20 on AFDC. At least 50% of the students at the Learning
Center have had drug or alcohol problems. The students often leave
the Learning Center and clandestinely go to the proposed location.
However, there was no evidence supporting that these students were
ever unlawfully sold beer or wine at the proposed location.
10. The proposed location is suitable for the sale of beer and wine on-premise.
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. 1995) 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. 1995) 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. 1995) 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, 281
S.E.2d 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. A cardinal rule of statutory interpretation is that one must first look
to the language of the statute to determine its meaning. Words used
in a statute should be given their plain and ordinary meaning.
Multimedia Inc. v. Greenville Airport Commission, 287 S.C. 521, 339
S.E.2d 884 (Ct. App. 1986). When the terms of a statute are plain and
unambiguous, the courts must apply those terms according to their
literal meaning. Holley v. Mount Vernon Mills, Inc., 312 S.C. 320,
440 S.E.2d 373 (1994). In this instance, the language of the statute is
plain. Section 61-9-320 specifically provides that the considerations
set forth in 61-9-320 (6) are not applicable to "locations" licensed
before the effective date of that section. Black's Law Dictionary
defines location as a "site or place where something is or maybe
located." Black's Law Dictionary 940 (6th ed. 1990).(1)
8. The Respondent contends that the proximity of the Life Center and
the Learning Center to the proposed location is a sufficient basis to
deny the Petitioner's permit. In support of that proposition, the
Respondent's cites Byers v. ABC Commission, 305 S.C. 243, 407
S.E.2d 653 (1991), and Moore v. ABC Commission, 308 S.C. 167,
417 S.E.2d 555 (1992). These cases did indeed hold that proximity to
a church or school is a sufficient basis in itself to deny a beer and wine
permit. However, these cases were decided after the Legislature
enacted the 1986 amendment to §61-9-360 (6). The holdings in Byers
and Moore were specifically based upon the 1986 change in §61-9-360 (6) which provides that a permit may be denied based simply on
the proximity of a location to a church or school. As explained in
Byers the 1986 amendment to section 61-9-360 (6) reversed the
courts holding in Port Oil Company v. Allen, 286 S.C. 286, 332
S.E.2d 787 (Ct. App. 1985), which interpreted the pre-1986
amendment language of §61-9-360 (6).
9. Since the provisions of the 1986 amendment to §61-9-360 (6) are not
applicable to this location, the holding of Port Oil is binding upon this
tribunal. In Port Oil the court held that even though a proposed
location was close to a residence, church and kindergarten, that fact
standing alone was not a sufficient basis to deny a permit.
10. The Respondent also contends that the court's holdings in Fast Stops,
supra and Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972),
authorize the denial of the Petitioner's permit based on the proximity
to the Life Center and the Learning Center independent of §61-9-360
(6). That contention was addressed in Port Oil and was rejected by the
court.
11. The Petitioner meets the statutory requirements for holding a beer and
wine permit at the proposed location.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Nancy B. McCummings for an on-premise beer and wine
permit be granted.
________________________________
Ralph King Anderson, III
Administrative Law Judge
April 15, 1996
Columbia, South Carolina
1. See also 48 CGS Intoxicating Liquors § 96 (1981), which explains that a statutory savings clause exempting
its provisions from "establishments" in existence at the time of the enactment of the statute is applicable to the premises
rather than the specific license for the establishment. |
