ORDERS:
FINAL ORDER
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 application to the South
Carolina Department of Revenue and Taxation ("DOR") for an off-premises beer and wine
permit, Application Number BG 105693, being protested by Rev. W.F. Patterson and others. A
contested case hearing was held April 17, 1996. The primary issue in controversy involves the
suitability of the proposed business location for the sale of beer and wine. Upon consideration of
the evidence and applicable law, the permit is 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 4301 Highway
72/221 East, Greenwood, South Carolina, having filed an application BG 105693 with the South
Carolina Department of Revenue and Taxation.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, 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 on a four-lane highway in unincorporated
Greenwood County, approximately .3 miles from Lake Greenwood.
(7) The proposed location was licensed to sell beer and wine for off-premises consumption
in the name of Franklin Ray Mathis from 1978 until 1995.
(8) Pursuant to Interlocutory Order of this Court dated April 19, 1996, DOR filed with
the Court certified copies of prior agency decisions involving the proposed location and the
issuance of beer and wine permits by the former ABC Commission.
(9) Administrative notice is taken of the October 16, 1978 decision of the South Carolina
ABC Commission, issued by Hearing Officer James H. Harrison following a hearing, which found
the proposed location suitable for an off-premises beer and wine permit, and it is incorporated
herein by reference in its entirety.
(10) Rev. James Young, pastor of Lakeside Pentecostal Holiness Church at the time,
protested the issuance of the permit to Franklin R. Mathis in 1978.
(11) Administrative notice is also taken of the May 14, 1980 decision of the South
Carolina ABC Commission, issued by Hearing Officer James H. Harrison which denied permittee
Frank R. Mathis' request to remove a stipulation from his beer and wine permit, and it is
incorporated herein by reference in its entirety.
(12 ) Franklin Ray Mathis is Petitioner's former husband.
(13 ) Pursuant to a Final Decree in Gladys C. Mathis v. Franklin Ray Mathis,
93-DR-24-696, by Family Court Judge John M. Rucker dated August 3, 1995, Petitioner
Gladys Y. Carnes, f/k/a Gladys C. Mathis took sole ownership and possession of the proposed
location.
(14) Petitioner was licensed to sell beer and wine for off-premises consumption at the
proposed location under a temporary permit issued by DOR from the fall of 1995 until March 30,
1996, at which time the temporary permit expired.
(15) Petitioner has been involved with the operation and management of the proposed
location in various capacities since 1978.
(16) The proposed location has not been cited for any ABC violations nor has a permit
ever been suspended or revoked for the proposed location.
(17) The area surrounding the proposed location is a mixed rural, commercial and
residential community.
(18) Lakeside Pentecostal Holiness Church is located across Highway 72/221 from the
proposed location, approximately 223 feet away.
(19) Protestant Spokesperson Rev. W.F. Patterson, is Pastor of Lakeside Pentecostal
Holiness Church.
(20) Protestants oppose the issuance of the permit on the grounds that the sale of beer
and wine at the proposed has resulted in customers consuming beer and wine on the church
property and littering, and because of opposition on moral grounds to the consumption of alcohol.
(21) The proposed location is kept clean and is well-run.
(22) No evidence was presented to indicate any law enforcement problems directly
attributable to the operation of the proposed location.
(23) The hours of operation of the proposed location are 5:30 a.m. - 12:30 a.m., Monday
through Saturday; and 6:00 a.m. - 11:30 p.m., Sundays.
(24) The continued 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.
(25) Except for the divorce agreement between Petitioner and her ex-husband, the
proposed location would have continued to be operated and licensed under the name of Franklin
Mathis.
(26) In the absence of further adverse evidence, occasional incidents of customers
purchasing beer at the proposed location, leaving the business premises, and consuming the beer
at picnic tables located on church property do not necessarily render the location unsuitable.
(27) The proposed location is suitable for the continued sale of beer and wine for off-premises consumption.
(28) 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.
(29) Petitioner has not had a permit revoked in the last two years.
(30) Petitioner is of good moral character.
(31) 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 mixed nature of the immediate area, the eighteen year history of the
proposed location as a licensed establishment, and the minimal adverse impact upon the
community from past sales of 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).
(6) By the October 16, 1978 decision of South Carolina ABC Commission Hearing
Officer James H. Harrison following a hearing involving Petitioner's ex-husband and the former
pastor of Lakeside Pentecostal Holiness Church, the proposed location was found to be suitable
for an off-premises beer and wine permit. That decision was not appealed.
(7) No evidence was presented to establish that any material change has occurred in
relation to the proposed location since the issuance of the initial permit on October 16, 1978.
(8) Under the doctrine of collateral estoppel, when an issue of fact or law is actually
litigated and determined by a valid and final decision of an administrative tribunal, and that
determination is essential to the decision, the determination is conclusive in a subsequent matter
between the parties, whether on the same or different claim. Carman v. S.C. ABC Commission,
___ S.C. ___, 451 S.E.2d 383 (1994); St. Philip's Episcopal Church v. S.C. ABC Commission,
285 S.C. 335, 329 S.E.2d 454 (Ct. App. 1985).
(9) 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
May 2, 1996
Columbia, South Carolina |
