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 108 Railroad Avenue, McColl, South Carolina. A hearing was
held March 25, 1996. Upon motion granted, the sole protestant was admitted as an intervenor.
The primary issue in controversy involved the suitability of the proposed business location for the
sale of beer and wine for off-premises consumption. Additionally, Intervenor-Protestant opposes
the issuance of the permit on the basis of assertions that Petitioner inaccurately identified the
address of the proposed location in her application and has been improperly selling beer and wine
under the permit of the previous owner/licensee. Intervenor-Protestant's arguments are not
persuasive. Based upon the cumulative evidence presented and the law applicable to this case, 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 108 Railroad
Avenue, McColl, South Carolina, having filed an application with the South Carolina Department
of Revenue and Taxation (hereinafter referred to as "DOR"), AI #105622.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestant, 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 convenience store which also
sells hot dogs and sandwiches.
(6) The proposed location is located within the Town of McColl, on the northwest corner
of Railroad Avenue and Church Street.
(7) A portion of the proposed location is currently licensed to sell beer and wine for off-premises consumption in the name of Jerry L. Johnson, d/b/a Trails End Beverage.
(8) A portion of the proposed location was also previously licensed as a retail liquor
store.
(9) Petitioner purchased the proposed location from Jerry Johnson and has been operating
the business since November, 1995, with minor involvement by Johnson.
(10) The original structure located at the proposed location was built approximately 25 -
30 years ago.
(11) In early 1995, an addition was constructed which substantially increased the size of
the structure.
(12) Petitioner seeks a beer and wine permit for the recently enlarged structure as a
whole, described in the application as 108 Railroad Avenue.
(13) Another nearby structure fronting on Railroad Avenue, known as 110 Railroad
Avenue, and formerly operated as Bobbie's Pool Room, is also owned by Petitioner.
(14) Bobbie's Pool Room is no longer a licensed location, having been converted to
storage space by Petitioner.
(15) A vacant lot, used within the past year as a town playground, is located adjacent to
the former Bobbie's Pool Room on Railroad Avenue.
(16) The area surrounding the proposed location is commercial and residential in nature.
(17) There are several other licensed locations in close proximity to the proposed
location.
(18) Intervenor-Protestant Rev. Billy Gilliard, is Pastor of McColl Church of God.
(19) The parsonage where Rev. Gilliard resides is located on McLaurin Street
approximately .25 mile from the proposed location.
(20) No license or permit has ever been suspended or revoked for the proposed location.
(21) 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.
(22) The proposed location is suitable for the sale of beer and wine for off-premises
consumption.
(23) 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 one year.
(24) Petitioner has not had a permit revoked in the last two years.
(25) Petitioner is of good moral character.
(26) 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) 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).
(6) S.C. Code Ann. § 61-1-95 (Supp. 1995) is inapplicable in the present case, as it
relates to persons prohibited from being permitted to sell beer and wine in situations in which a
previous license or permit for the subject location has been suspended or revoked.
(7) 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 |
