SC Administrative Law Court Decisions

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 2350 Peach Orchard Road, Sumter, South Carolina. A hearing was held April 4, 1996. The sole issue considered was the suitability of the proposed business location for the sale of beer and wine. The application for an off-premises beer and wine permit is hereby granted.

By a preponderance of the evidence, I find:

1. Petitioner seeks an off-premises beer and wine permit for a location at 2350 Peach Orchard Road, Sumter, South Carolina, having filed an application with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"),

AI #105997.

1. Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestant, and DOR.
2. The DOR file was incorporated into the record of the hearing.
3. Petitioner operates a chain of 27 convenience stores and has owned or operated businesses licensed to sell beer and wine since 1970.
4. Petitioner currently operates the proposed location as a gasoline station and convenience store.
5. The proposed location has been previously licensed to sell beer and wine for off-premises consumption almost continuously since 1971, having been operated as a gas and convenience store under the former names of Zippy Mart, Mr. G's, and Winner's Circle.
6. When previously operated and licensed as Mr. G's, Petitioner owned the proposed location.
7. The immediate area surrounding the proposed location is commercial in nature.
8. Another licensed location, a Young's convenience store, is directly across the street from the proposed location.
9. Korean American Presbyterian Church is located approximately 197 feet from the proposed location.
10. Oakland Elementary School is located approximately 270 feet from the proposed location.
11. Shirley Tomlin, Principal of Oakland Elementary School opposes the issuance of the permit based upon the proximity of the proposed location to the elementary school.
12. DOR appeared at the hearing in opposition to the issuance of the permit based upon the issue of suitability of the proposed location, but informed the Court that DOR would have issued this permit but for the protest of Shirley Tomlin.
13. Oakland Elementary School is adjacent to the proposed location, separated from the business premises by a fence.
14. Approximately 50 to 100 students walk past the proposed location daily going to or from school.
15. No evidence was presented to indicate or suggest that the sale of beer and wine at the proposed location during the past twenty-five years created or contributed to any safety problems regarding the students, faculty or staff of the school.
16. 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.
17. The proposed location is suitable for the sale of beer and wine for off-premises consumption.
18. 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.
19. Petitioner has not had a permit revoked in the last two years.
20. Petitioner is of good moral character.
21. 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 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)

1. In light of the commercial nature of the immediate area, the existence of another licensed location across the street, the past use of the proposed location, and the twenty-five year record of the location while previously licensed to sell beer and wine, 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).
2. 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

April 19, 1996

Columbia, South Carolina