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. (Supp. 1995) for a hearing on the application of John B.
Clark. Petitioner seeks an off-premises beer and wine permit (AI 107536) for Bratcher's Grocery,
which is located outside the city of Jefferson at Route 2, Box 666, Highway 151, Chesterfield
County, South Carolina.
After timely notice to the parties and protestants, a hearing was held at the Administrative
Law Judge Division, Columbia, South Carolina. Several protestants appeared at the hearing.
Pastor Richard Henderson of the Bethel Baptist Church served as the spokesperson for the
protestants. The protestants did not move to intervene as parties. The issues considered at the
hearing were: (1) petitioner's eligibility to hold a beer and wine permit; (2) the suitability of the
proposed business location; and, (3) the nature of the proposed business activity.
Petitioner's off-premises beer and wine permit is hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following findings of fact by a preponderance of the evidence:
1. Petitioner seeks an off-premises beer and wine permit for Bratcher's Grocery
which is located outside the city of Jefferson at Route 2, Box 666, Highway 151, Chesterfield
County, South Carolina.
2. Petitioner's application to the South Carolina Department of Revenue and Taxation
("Department") was made a part of the record by reference without objection.
3. The proposed location is located approximately three (3) miles from the city of
Jefferson, South Carolina directly off of Highway 151.
4. Highway 151 is under reconstruction and is being changed into a four lane major
thoroughfare.
5. The area surrounding the proposed location is rural/residential in nature.
6. No church, school or playground is within close proximity to the proposed
location.
7. Bethel Baptist Church is located approximately 756 feet from the proposed
location.
8. Petitioner has operated and managed the proposed location as a grocery store for
one year and two months. The daily hours of operation at the proposed location are from 6:00
a.m. to 9:00 p.m. on Monday through Saturday and 12:30 p.m. to 6:00 p.m. on Sunday.
9. Petitioner owns the proposed location.
10. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of petitioner John B. Clark. The SLED report revealed no criminal violations; and,
petitioner has not engaged in acts or conduct that imply the absence of good moral character.
11. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained his principal residence in the state for at least thirty (30) days prior
to the date of making application for an off-premises beer and wine permit.
12. Petitioner has never held a beer and wine permit or other license for the sale or
consumption of alcoholic beverages.
13. Notice of the application appeared in The Pageland Progressive-Journal, a
newspaper of general circulation in the area of the proposed location, for three (3) consecutive
weeks and notice was posted at the proposed location for fifteen (15) days.
14. The Department did not oppose petitioner's application.
15. Pastor Richard Henderson testified in opposition to the permit in question. As
justification for denial of an off-premises beer and wine permit, the protestant cited: (1) his
aversion to the sale of alcohol because it has never been sold at this location in the past; (2) the
proximity of the proposed location to the church; (3) the possible negative impact of the proposed
location on the community; (4) concerns regarding the timeliness of police response to incident
calls; (5) over saturation of beer and wine locations in the area; and, (6) the possibility that the
purchase of beer and wine may affect persons other than the purchaser.
16. Fred and Kenny Rollings, the previous owners of the proposed location, also
testified in opposition to the sale of beer and wine at the proposed location. Fred Rollings owned
the proposed location for approximately fifty years. Kenny Rollings, the son of Fred Rollings,
took over the business several years ago. Petitioner purchased the proposed location from the
Rollings. The Rollings testified that, upon purchase of the business, petitioner verbally agreed not
to sell alcoholic beverages at the proposed location. Mr. Fred Rollings also testified that he was
concerned with the proximity of the proposed location to the residences in the area.
CONCLUSIONS OF LAW AND DISCUSSION
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) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) establishes the criteria for the issuance
of a beer and wine permit.
3. Although "proper location" is not statutorily defined, broad discretion is vested in
the Administrative Law Judge Division in determining the fitness or suitability of a particular
location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
4. 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 Comm'n, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
5. 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); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276
S.E.2d 308 (1981).
6. In determining whether a proposed location is suitable, it is proper for this tribunal
to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C.
504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984); See also Moore v. S.C. ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992). 7. The denial of a license or permit to an applicant on the grounds of unsuitability of
location is without evidentiary support when relevant testimony of those opposing the requested
license or permit consists entirely of opinions, generalities, and conclusions not supported by
facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972).
8. There has not been a sufficient 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 have an adverse impact on the community. The proposed
location and the nature of the business activity are suitable and proper.
9. Petitioner meets all of the criteria enacted by the South Carolina General Assembly
for the issuance of an off-premises beer and wine permit. In making a decision in this matter, this
tribunal is constrained by the record before it and the applicable statutory and case law. The
objections raised by the protestants are mainly rooted in their abhorrence to the proposed location
selling alcoholic beverages. This tribunal acknowledges the protestants' opposition to the
issuance of the permit, in question, and also acknowledges their right to hold such sentiments,
however, the basis of this opposition is without merit and is not within the statutory grounds for
refusal. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). The mere aversion to the
sale of alcoholic beverages at the proposed location is not a sufficient basis on which to deny
petitioner's request. Petitioner's business has operated for one year and two months with only one
incident which was a domestic dispute. If petitioner sells beer and wine for off-premises
consumption, the character and nature of his business will not change so as to adversely affect the
community. The fact that a large number of residents protest the issuance of the permit is not a
sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162
(Supp. 1994).
10. The proposed location and business activity are suitable and proper.
11. Petitioner satisfies all statutory requirements for holding an off-premises beer and
wine permit, and the proposed location is proper for the issuance of an off-premises beer and wine
permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department of Revenue and Taxation issue an off-premises beer and
wine permit to John B. Clark for a location at Route 2, Box 666, Highway 151, Chesterfield
County, South Carolina upon the payment of the required fee(s) and cost(s) by petitioner.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
July 17, 1996
Columbia, South Carolina |
