ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and
S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1995) upon an application for an off-premises beer and wine permit for 901 W. Baker Boulevard, Gaffney, South Carolina. A hearing
was held in Gaffney at the Cherokee County Courthouse, on February 9, 1996. The sole issue
considered was the suitability of the proposed business location for the sale of beer and wine for
off-premises consumption and the suitability of the proposed business activity. The application
for an the off-premises beer and wine permit is hereby granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an off-premises beer and wine permit for a location at 901 W. Baker
Boulevard, Gaffney, South Carolina, having filed an application with the South Carolina
Department of Revenue and Taxation (hereinafter referred to as "DOR"), AI #105549.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) DOR did not appear at the hearing, having been excused from participation upon
motion granted, on the basis that DOR would have issued this permit but for the unanswered
question of suitability of location and that DOR had no evidence to present regarding suitability of
location.
(4) The DOR file was incorporated into the record of the hearing.
(5) Petitioner currently operates the proposed location as a gasoline station and
convenience store.
(6) Petitioner intends to demolish the existing structure on the proposed location and
replace it with a structure which will include three to five separate businesses, including a gas
station, convenience store, and at least one fast food restaurant.
(7) The proposed location is located within the City of Gaffney.
(8) The immediate area surrounding the proposed location is commercial in nature with a
residential neighborhood nearby, situated to the rear of the proposed location.
(9) The proposed location has been previously licensed to sell beer and wine for on-premises
consumption for a few years during the 1980's, when operated as Alfredo's Italian Restaurant.
(10) There are several other licensed locations in close proximity to the proposed
location, including Bronco's Mexican Restaurant, Rite Aid, and Bi-Lo.
(11) There are three churches within the general area of the proposed location, one of
which protests the issuance of the permit sought.
(12) Intervenor-Protestant Rev. R. Kevin Childs, is Pastor of West End Baptist Church
(13) Rev. Childs and other witnesses testified in opposition to the issuance of the permit
based upon the proposed location's proximity to West End Baptist Church and the other churches,
the daycare at West End Baptist, B.D. Lee Elementary School, and nearby residences, and
because of fear of traffic congestion at and near the intersection of Baker Boulevard and
Overbrook Drive.
(14) West End Baptist Church is located approximately .3 mile from the proposed
location.
(15) B.D. Lee Elementary School is located on Overbrook Drive, approximately .3 mile
from the proposed location.
(16) Baker Boulevard is a heavily-traveled business thoroughfare and will not be
significantly affected by the proposed business activity at the proposed location.
(17) The sale of beer and wine for off-premises consumption at the proposed location will
not alter the nature and character of the immediate area surrounding the proposed location.
(18) The proposed location is suitable for the sale of beer and wine for off-premises
consumption.
(19) Petitioner is over twenty-one 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.
(20) Petitioner has not had a permit revoked in the last two years.
(21) Petitioner is of good moral character.
(22) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen days.
CONCLUSIONS OF LAW
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. 1995) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) 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).
(4) 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).
(5) The opinions and conclusions of Protestant-Intervenor and other witnesses that the
sale of beer and wine at the proposed location will have a detrimental impact upon the well-being
of the community and create crime or traffic hazards were without evidentiary support. Ronald F.
Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Taylor v.
Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
(6) The churches, schools, and daycare, are far enough removed from the proposed
location not to be materially impacted by the business practices of the proposed location.
(7) In light of the commercial nature of the immediate area, the existence of several other
licensed locations in the area, and the present and past use of the proposed location, the proposed
location is suitable for the sale of beer and wine for off-premises consumption. Ronald F. Byers
v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984); Taylor v. Lewis, 261
S.C. 168, 198 S.E.2d 801 (1973).
(8) Petitioner meets the statutory requirements to hold a beer and wine permit.
ORDER
IT IS THEREFORE ORDERED that the off-premises beer and wine permit sought is
granted.
______________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
February 23, 1996
Columbia, South Carolina |
