SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and

§§ 1-23-310, et seq. (1986 & Supp. 1985) upon an application for an on-premises beer and wine permit for 321 S. Hampton Avenue, Fairfax, South Carolina, by Mannie F. Ogletree, filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on March 20, 1996. The Honorable Rufus E. Ferguson, the Honorable

Ben R. Bradley, and Petitioner testified in favor of the application. Protestant Joe Mole testified against the application. The issues in controversy were: the suitability of the proposed business location and the nature of the proposed business activity. The permit is granted.

By a preponderance of the evidence, I find:

1. Petitioner seeks an on-premises beer and wine permit for 321 S. Hampton Avenue, Fairfax, South Carolina, having filed an application with DOR, BW #105223.
2. Notice of the time, date, place, and subject matter of the hearing was given to Petitioner, protestant, and DOR.
3. DOR did not appear at the hearing, having been excused from participation in the proceedings on the basis that the department has no evidence concerning suitability of this location, and but for the unanswered question of suitability of location, the Department would have issued this permit.
4. The proposed location is within the Town of Fairfax in a commercial area.
5. Petitioner is currently operating the proposed location as a restaurant and intends to operate the establishment as a restaurant and night club if a permit is granted.
6. Petitioner also owns and operates a retail liquor store located adjacent to the proposed location.
7. Petitioner's application for the retail liquor license for the adjacent liquor store was issued without protest approximately one year ago.
8. In addition to Petitioner's liquor store, there are two other licensed locations within 288 feet of the proposed location.
9. The proposed location has been previously licensed for the sale of beer and wine, almost continuously between 1976 and 1995.
10. Rev. Joe Mole, Pastor of Nazarene Baptist Church in Fairfax, opposes issuance of the permit on the grounds that the sale and consumption of beer and wine have and will have a detrimental impact upon the Fairfax community and its young people, in particular, and that the area surrounding the proposed location has a had drug and alcohol related incidents in the past.
11. Rev. Mole's opposition to the issuance of the permit was based primarily on the general effect of alcohol use upon crime, teen pregnancy, family and education problems, and the health rate.
12. Nazarene Baptist Church is located 685 feet from the proposed location.
13. A park is located adjacent to Nazarene Baptist Church and is located approximately 440 feet from the proposed location.
14. Nazarene Baptist Church and the adjoining park were built while the proposed location was licensed and operated by a previous licensee.
15. Petitioner leases the proposed location from Ben R. Bradley, Jr., a Fairfax town councilman and member of Nazarene Baptist Church.

1. According to Fairfax Magistrate Rufus Henderson, also a deacon at Nazarene Baptist Church, the proposed location itself does not have a history of criminal activity.
2. Petitioner is a full-time employee at the Savannah River Site.
3. Petitioner and his wife are the managers of the proposed location.
4. 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 thirty days.
5. Petitioner has never had a permit/license revoked.
6. Petitioner is of good moral character.
7. 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 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. When the relevant testimony of those opposing the permit consists entirely of opinions, generalities, and conclusions not supported by fact, the denial of the permit on the ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981)
6. The proposed location is suitable and proper, in light of the long history of the location as a licensed premises, the existence of the proposed location (and previous permit) prior to construction of the church and park, and the lack of relevant evidence indicating unsuitability of the location. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
7. Petitioner meets the statutory requirements for issuance of a beer and wine permit.

ORDER

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

wine permit applied for.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

April 5, 1996

Columbia, South Carolina