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. (Rev. 1986 & Supp. 1995) upon the application of Walter B. Todd,
d/b/a The Pantry for an off-premises beer and wine permit for Route 12, State Park Road, Greenville,
South Carolina. The application was protested by the First Peniel Holiness Church and Ron Garrison,
both of Greenville, South Carolina.
After notice to the parties and the protestors, a hearing was conducted on June 14, 1996.
Present at the hearing were Protestants, Daniel and Beth Friend of Greenville, South Carolina.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases and taking into account the credibility of the witnesses:
1. The Department of Revenue and Taxation does not object to the issuance of an off-premises beer and wine permit to the applicant.
2. The applicant, Walter B. Todd, is a 53 year old life long resident of South Carolina
and a legal resident of South Carolina.
3. The Petitioner currently holds several beer and wine permits on behalf of The Pantry,
Inc. The present location has never been cited for any violations of any laws relating to the sale of
beer and wine.
4. The Pantry is located at Route 12, State Park Road, Greenville County, Greenville,
South Carolina. The hours of operation are Sunday through Saturday 7:00 a.m. - 11:00 p.m. This
particular location has been licensed since 1973 as a Pantry store. From 1969 to 1973, it was also
licensed to sell beer and wine. Since the protest has been issued against the application, the location
has not sold beer and wine even though, it may be entitled to sell beer and wine.
5. There are no schools, playgrounds or residences in the vicinity.
6. There have recently been three incidents to which law enforcement has responded.
Two involved robberies in which the sheriff's department responded within five to ten minutes and
the other was a burglary occurring two years ago. There have been no other incidents requiring law
enforcement.
7. The location is in a rural area of Greenville County. There are no residences in the
vicinity and there are at least two churches, one of which filed a protest that was later withdrawn. The
other protest is by Daniel Friend, Pastor of First Peniel Holiness Church. The church is located more
than 500 feet from the proposed location and is protected by a gate at the entrance of the driveway
onto the church grounds. Between the proposed location and the church is a wooded area owned
by the church. Although a church has been at this location for several years, the First Peniel Holiness
Church has only been at this location for approximately two years. Worship services are conducted
on Sundays at 10:30 a.m. and 6:00 p.m., and on Tuesdays and Wednesdays at 7:00 p.m. Other
meetings, including fellowship meetings, are held at the church. During the week of revival, there
are nightly worship services.
8. The Protestors believe there is inadequate police protection in this area. Their belief
is based upon the Greenville County Sheriff's slow response to calls made about disturbances on the
church's property, which has taken at least thirty minutes to one hour to respond.
9. Daniel and Beth Friend have witnessed teenagers and others consume alcohol in the
parking lot of the proposed location and have seen a number of beer bottles and cans littered on
church property outside their fence. However, neither Mr. or Mrs. Friend can specifically connect
the sale of beer and wine at the Pantry with the littering occurring on the church's property. In
addition, the Friends agree the Pantry has taken steps to prevent consumption of beer and wine or
other alcoholic beverages in the parking lot, but the conduct still occurs on occasion. They also
complain about occasional loud noise and vulgar language occurring outside the location. The
protestors cannot, however, attribute this conduct to the sale of beer and wine.
10. The First Peniel Holiness Church is also opposed to the location on the basis that the
church takes an official stand against the sale of alcohol.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude, as a matter of law.
1. S.C. Code Ann. § 1-23-600 (Supp. 1995) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1995) grants to the Administrative Law Judge
Division, the powers, duties and responsibilities as a hearing officer in protested and contested
matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the statutory requirements for the
issuance of a beer and wine permit. Among the criteria is the prohibition against the issuance of a
beer and wine permit unless the proposed location is a proper one taking into consideration the
proximity to residences, schools, playgrounds and churches.
4. Unlike the requirements for a liquor license, there is no statutorily mandated distance
between the proposed location and churches, schools, playgrounds or residences. S.C. Code Ann.
§ 61-9-320 (6) (Supp. 1995) provides that "the Department may consider, among other factors, as
indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches."
5. Although "proper location" is not statutorily defined, broad discretion is vested in the
Division in determining the fitness or suitability of the proposed business location of an application
for a permit to sell beer and wine. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d
705 (Ct. App. 1984).
6. In balancing the nature of the business with the concerns of the community, there has
been no evidentiary showing that the present location is unsuitable or that the issuance of an off-premises beer and wine permit would affect the residents' safety, create traffic problems, or otherwise
have an adverse impact on the community. The proposed location is in a rural area and the nature
of the business activity is suitable and proper. The location has been licensed for over thirty years and
there has been no showing that the presence of beer and wine for off-premises consumption adversely
affects this community.
7. The fact that the church protests the issuance of the permit is not sufficient reason by
itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 263 (Supp. 1995); 48 C.J.S.
Intoxicating Liquors § 119 (1981).
8. The applicant and the location are suitable for the issuance of an off-premises beer and
wine permit.
ORDER
Based upon the Findings of Facts and Conclusions of Law, it is hereby
ORDERED, that the Department shall issue an off-premises beer and wine permit to Walter
B. Todd, d/b/a The Pantry at Route 12, State Park Road, Greenville, South Carolina, upon the
payment of the appropriate fees.
AND IT IS SO ORDERED.
____________________________
ALISON RENEE LEE
Administrative Law Judge
June _____, 1996
Columbia, South Carolina. |
