ORDERS:
ORDER AND DECISION
This matter comes before me on the application of Liston T. Miller for an on-premises beer
and wine permit for Pizza Corner located in Johnsonville, South Carolina. After notice to the parties,
a hearing was conducted on December 1, 1995. Based upon the evidence presented, Liston Miller
is entitled to an on-premise beer and wine permit and his application is granted.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases, and taking into account the credibility of the witnesses:
1. The applicant, Liston T. Miller, is 45 years old and is a lifelong resident of
Johnsonville, South Carolina and the United States.
2. He has no criminal convictions and is of good moral character.
3. Miller has never held any permits or licenses for the sale of beer, wine or alcoholic
liquors and has never had any violations relating to permits or licenses.
4. The proposed location is in the heart of Johnsonville on Georgetown Road (Highway
41 and 51) on the corner of Highway 341. Miller has operated the Pizza Corner for three years and
has purchased the property. It is open for business six days a week from 11:00 a.m. to 11:00 p.m.
The business is closed on Sunday. It seats approximately 30 people in the dining area. The primary
business of the location is a restaurant which the applicant compared to Pizza Hut.
5. The location, being on the main street in Johnsonville, is surrounded by other
commercial entities including Johnsonville State Bank, barbershops, video arcades, and gas stations.
A traffic light controls the traffic at the intersection. Access to the location is from Georgetown
Road.
6. There are no churches, schools, or playgrounds in the immediate vicinity. Johnsonville
High School is about two-tenths of one mile from the proposed location. The First Baptist Church
is located about one-tenth of one mile from the proposed location.
7. Rev. Edward Allen Newsome of the First Baptist Church of Johnsonville appeared at
the hearing to protest the application and Alvin Burdette brought a petition circulated among the
community signed by persons protesting the application.
8. The protests were based upon the traffic at this intersection in Johnsonville, the limited
police protection available, and that the establishment is patronized by minors. The concerns about
traffic are based upon the growing industry in Johnsonville and the current traffic on these state
highways flowing through this intersection. There have been accidents in the past and the reduced
speed limit causes problems. The city only has five patrol officers, two of whom are on duty in the
evenings. Rev. Newsome also expressed concerns about the influence of alcohol on the youth in the
community. The petitions signed by residents, Students Against Drunk Driving from the high school
and the middle school contained the same concerns.
9. The police department, the fire department and the local rescue squad submitted
letters through the protestors voicing opposition to the application based upon the traffic and the
proximity to the high school.
10. The Hooterville Bar and Grill is also located on the same street past the Pizza Corner
and the high school closer to the outskirts of town toward Kingstree. Its presence in the community
has caused problems including a shooting that resulted in the death of a resident. The community is
concerned that the Pizza Corner will have the same influence in the area.
11. Notice of the application was posted at the location and published in the Weekly
Observer newspaper in Williamsburg County.
CONCLUSIONS OF LAW
1. The Administrative Law Judge is vested with the powers, duties and responsibilities
exercised by the former Alcoholic Beverage Control commission and hearing officers pursuant to
Chapter 23 of Title 1. 21-S.C. Code Ann. § 61-1-55 (Supp. 1994).
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the statutory requirements for the
issuance of beer and win permits. It provides in part that the location must be a proper one.
3. The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve 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).
4. Proximity of a location to a church, school, playground, or residence is a proper
ground, by itself, on which the location may be found unsuitable for a permit to sell beer and wine.
Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653 (1991).
5. A beer and wine permit issued by the State is a privilege granted in the exercise of the
police power of the State. Feldman v. South Carolina Tax Commission, 204 S.C. 49, 26 S.E.2d 22
(1943).
6. The denial of a permit to an applicant on the ground of unsuitability of location is
without evidentiary support when relevant testimony of those opposing the requested permit consists
entirely of opinions, generalities, and conclusions not supported by facts. Smith v. Pratt, 258 S.C.
504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168,198 S.E.2d 801 (1973).
7. The fact that there are protests to the issuance of the permit is not sufficient reason
by itself to deny the application. See 45 Am.Jur.2d Intoxicating Liquors § 162 (Supp. 1994); 48
C.J.S. Intoxicating Liquors § 119 (1981).
DISCUSSION
Without sufficient evidence of an adverse impact on the community, the application must not
be denied if the statutory criteria are satisfied. There has been no reliable, factual evidence showing
that the present location in 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 Georgetown Road. The
objections by police and fire departments and the rescue squad were considered, but given less weight
because they failed to appear at the hearing and offer specific testimony on their objections. This
prevented the applicant from having an opportunity to cross examine the witness and raise any
objections. Further, the timeliness of the letters did not afford the applicant a reasonable opportunity
to investigate the matters asserted.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby,
ORDERED, that the application of Liston T. Miller for an on-premises beer and wine permit
for the Pizza Corner located at Georgetown Road in Johnsonville, South Carolina is GRANTED.
The Department shall issue the permit upon payment of the appropriate fees.
AND IT IS SO ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge Division
December _____, 1995
Columbia, South Carolina |
