ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and
§§ 1-23-310, et seq. (1986 & Supp. 1995) upon application for an off-premises beer and wine
permit for 4329 Augusta Highway, Gilbert, South Carolina, by Gary D. Renaud, filed with the
South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A
hearing was held on April 29, 1996. Protestant Kenneth Brazell, Pastor of Gilbert Church of
God, appeared at the hearing to protest the issuance of the permit, asserting that the because of
the proximity of his church to the proposed location, the proposed location is not a suitable one
for the sale of beer. Upon consideration of the relevant 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 4329 Augusta
Highway, Gilbert, South Carolina, having filed application with DOR, AI #107068.
(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 nor express opposition to the issuance of the
permit, having been excused from participation upon motion granted.
(4) The proposed location is presently an unimproved lot upon which Petitioner intends
to construct a building to be used for a convenience store and gasoline station.
(5) Petitioner formerly owned and operated a convenience store at another location in
Gilbert located on Highway 378 approximately three miles from the proposed location.
(6) The former location was licensed to sell beer and wine for off-premises consumption
from October, 1994, until Petitioner sold the business in January, 1996.
(7) While licensed at the former location, Petitioner had a violation-free record.
(8) The hours of operation of the proposed location are 6:00 a.m. - 12:00 midnight, seven
days a week.
(9) There are other licensed locations in the Gilbert community, including a Citgo Station
across the street from the proposed location which holds an off-premises beer and wine permit.
(10) The proposed location is within an unincorporated area of Lexington County in a
predominately commercial area, which also contains a few residences.
(11) There are approximately seven commercial dwellings located within 700 feet of the
proposed location.
(12) There are approximately five residential dwellings within 700 feet of the proposed
location; however, it is uncertain how many of those dwellings are currently inhabited.
(13) Two of the residential dwellings located in close proximity were purchased by
Petitioner at the same time he purchased the unimproved lot, which is the site of the proposed
store.
(14) The Gilbert Church of God is located approximately 1,742 feet from the proposed
location, on the opposite side of Augusta Highway.
(15) The church is not opposed to the operation of the restaurant at the proposed
location; it is opposed only to the sale and consumption of alcoholic beverages at the proposed
location.
(16) The church opposes the sale and consumption of alcoholic beverages at the proposed
location because of moral and religious convictions and because of the proximity of the proposed
location to the church building.
(17) The church is also opposed to the permit being issued because of the number of
existing outlets in the community and because of the fear of loitering, underage drinking, and
littering.
(18) 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.
(19) Petitioner has never had a permit/license revoked.
(20) Petitioner is of good moral character.
(21) 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.
(22) The proposed location is suitable for the sale of beer and wine for off-premises
consumption.
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) 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) In light of the past history of the Petitioner as a permittee in the Gilbert area, the
commercial nature of the immediate vicinity, the existence of another licensed location in the
immediate vicinity, and the distance of the proposed location from the Gilbert Church of God, 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).
(7) Petitioner meets the statutory requirements to hold 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
May 8, 1996
Columbia, South Carolina |
