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 filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR") by Cathy L.Vaughan. A hearing was held on March 26, 1996. The issues in controversy were: (1) the suitability of the proposed business location; and (2) the nature of the proposed business activity. Upon review of the cumulative evidence and applicable law, the permit is granted.

By a preponderance of the evidence, I find:

1. Petitioner filed an application for an off-premises beer and wine permit for a location at the corner of Douglas Street and U.S. Highway 1, Patrick, South Carolina, having filed an application with DOR, AI #105690.
2. Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, and DOR.
3. The proposed location is located within the Town of Patrick.

1. Patrick is a small community which does not have its own municipal police force and relies on the Chesterfield County Sheriff's Department for law enforcement protection.
2. Response time for the Chesterfield County Sheriff's Department to respond to a call in Patrick is approximately ten minutes.
3. Petitioner is currently operating the proposed location as a general country store.
4. The proposed location previously operated as a clothing store.
5. The immediate vicinity surrounding the proposed location is commercial in nature, with three residences in close proximity to the proposed location, located to the rear of the business.
6. The closest residents are Petitioner's parents, who assist in the proposed location's operation.
7. The proposed location contains a game room, but Petitioner has closed it and does not plan to operate it in the future.
8. There is one other licensed location in Patrick, a grocery store approximately one and a half blocks from the proposed location.
9. There are no churches, schools, or playgrounds within close proximity of the proposed location.
10. Petitioner's application is opposed by Rev. Wayne Williams, Pastor of Patrick Baptist Church, and Patrick residents Evelyn McLain and Glenn Cranford. Protestants expressed safety and moral concerns in opposing the issuance of the permit.
11. Patrick Baptist Church is located on Turnage Street, approximately 1,384 feet from the proposed location.
12. Petitioner has experience working in convenience and grocery stores licensed to sell beer and wine.
13. Protestants concede that, but for the beer and wine permit, the proposed location is well-run and is an asset to the community.
14. Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained her principal residence in South Carolina for more than thirty days.
15. Petitioner has not had a permit/license revoked in the last two years.
16. Petitioner is of good moral character.
17. 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.
18. DOR did not appear at the hearing nor express opposition to the issuance of the permit, having been excused from participation upon motion granted.

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 license/permit to sell liquor, 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 close proximity of the residence of Petitioner's family to the proposed location is a legitimate factor to be considered in favor of issuance of the permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
6. Protestants' testimony that the well-being of the community would be jeopardized by the issuance of the permit was based upon opinion and conclusion and lacked specific factual support. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

1. Even though the Town of Patrick lacks its own police force, there is no evidence that the County Sheriff's Department cannot adequately protect the community or that the sale of beer and wine for off-premises consumption at the proposed location will require greater police protection.
2. Protestants concede that, but for the beer and wine permit, the proposed location is an asset to the community and is well run. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
3. Petitioner meets the statutory requirements for issuance of a beer and wine permit.

ORDER

IT IS THEREFORE ORDERED that DOR issue to Petitioner the off-premises beer and

wine permit applied for.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

April 23, 1996

Columbia, South Carolina