ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C.
Code Ann. §§ 61-4-520, 61-4-525, 61-2-260 and 12-4-320 (Supp. 2002) for a contested case
hearing. The Petitioner seeks an on-premises beer and wine permit for the location at 113 Washington
Street, Abbeville, South Carolina. This matter is presently before the Division because of a protest
by a concerned citizen regarding the suitability of the location. The Respondent moved to be excused,
since but for the protest the Department would have issued the permit. This motion was denied.
After notice to the parties and Protestant, a hearing was conducted on September 10, 2003, at the
Division in Columbia, South Carolina. At the hearing, the parties and Protestant were present as
indicated.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and
having closely passed upon their credibility, I make the following Findings of Fact by a preponderance
of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit for the location known as
Abbey’s Alley, located at 113 Washington Street, Abbeville, South Carolina. This location is
currently a coffee shop and general mercantile store, and the Petitioner seeks to offer his customers
the option of having beer and wine available with their meals, or after plays at the Opera House.
2. The Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all statutory requirements and would have granted the permit but for
the protest as to suitability of the location. These facts were stipulated to at the beginning of the
hearing.
3. The location is in the downtown area of Abbeville in a commercial district. There
are churches in the area, but not within the statutory proximity.
4. Reverend Cutter opposed the permit. He is concerned about the harm that beer and
wine could cause in the community, and about the potential increase in accidents caused by driving
under the influence of alcohol. He cited numerous statistics to show the dangers of alcohol.
5. Notice of the application appeared in The Press and Banner, a newspaper
of general circulation in the area of the proposed location, once a week for three consecutive weeks
and notice was posted at the proposed location for fifteen days.
6.Although the Protestant was very passionate and articulate in his opposition, the fact
remains that the statute that this Court must consider speaks in terms of the suitability of the location
and the applicant only. There was no specific testimony or evidence presented that the location at
113 Washington Street, or the applicant JSJ Enterprises, LLC, was unsuitable.CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1.The South Carolina Administrative Law Judge Division has jurisdiction over this
matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002).
2.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
3.Although “proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of the proposed business location of an applicant
who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d
119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
4.It is also the fact finder’s responsibility to judge the demeanor and credibility of the
witnesses and determine the relevance and weight of any testimony offered.
5.The determination of suitability of 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). Any evidence adverse to the location may be
considered. Byers v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further,
the Judge may consider whether there have been law enforcement problems in the area. Palmer v.
South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may
consider the proximity or the absence of other licensed locations in the immediate vicinity, as well as
the existence of small children in the area.
6.In considering the suitability of a location, it is relevant to consider the previous
history of the proposed location and to determine whether the testimony in opposition to a permit
consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973).
7.Without sufficient evidence of an adverse impact on the community, the application
must not be denied if the statutory criteria are satisfied. The fact that a Protestant objects to the
issuance of a permit is not a sufficient reason alone to deny the application. 48 C.J.S. Intoxicating
Liquors § 119 (1981).
8.S.C. Code Ann. § 61-4-525 (Supp. 2002) provides that a person residing in the county
in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles
of the location, may protest the issuance of the permit if he files a written protest.
9.Permits and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina
Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10.After considering all the relevant factors, I find that the restaurant’s location is suitable
for the on-premises sale of beer and wine. There is nothing to indicate that the Petitioner would
operate his business in an unlawful manner. The Protestant’s convictions are strongly held; however,
his purely moral and religious objections do not specifically address the suitability of the location or
the applicant.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner’s application
for an on-premises beer and wine permit.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
September 10, 2003
Columbia, South Carolina |