ORDERS:
ORDER AND DECISION
This matter was pending before the Administrative Law Judge Division pursuant to S. C.
Code Ann. § 61-9-320 (Supp. 1995) upon the application of Willart Smith, d/b/a W & S Smith
Grocery for an on-premises beer and wine permit for a location at 247 Congress Street, Charleston,
South Carolina. The Department moved to be excused from participating in the hearing on the basis
that the Petitioner meets the statutory qualifications for the issuance of the beer and wine permit and
but for a protest by Jeanetta Scott of Burke High School regarding the suitability of the location, the
Department would issue the permit. The Department had no evidence to present with respect to the
suitability of the location. The Department's motion was granted.
After notices to the parties dated June 12, 1996, a hearing was conducted on Wednesday, July
31, 1996 in Charleston, South Carolina. The Protestant, Jeanetta Scott of Burke High School, failed
to appear at the hearing. Based upon the evidence presented, the application is granted.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases by a preponderance of the evidence, and taking into account the
credibility of the witnesses:
1. The applicant, Willart Smith, is over the age of twenty-one and is a life long legal
resident of South Carolina and the United States. His son, also named Willart Smith, will be the
manager of the proposed location.
2. Neither the applicant nor his son has a criminal record and both are persons of good
moral character.
3. The proposed location has been licensed since 1968 for on-premises consumption of
beer and wine in the name of Helen Smith, the younger Smith's mother. There have been no
problems with law enforcement.
4. Both Smiths reside above the business. Helen Smith abandoned her permit at this
location in February 1996 because she is unable to operate the business. The applicant and his son
want to operate their business at this location.
5. The hours of operation would be six (6) days a week, 7:00 a.m. until 9:00 p.m. The
facility is a grocery store with a pool table and video game machines. Plans are being made for food
service.
6. Applicant has held a beer and wine permit for a store located at 1 Jasper Street,
Charleston, South Carolina. This permit was voluntarily surrendered when Smith closed the business
so he could operate the store at Congress Street. Smith's permit has never been suspended or
revoked.
7. The proposed location is within city limits and is surrounded by residences.
8. Residents in the area are not opposed to the issuance of the beer and wine permit. 9. There are no churches or playgrounds within a mile of the proposed location.
10. Burke High School is 489 feet from the proposed location.
11. Notice of the application was published in the Post and Courier newspaper and posted
at the location for the time period required.
12. Although the application is for on-premises consumption, the Smiths also plan to sell
beer and wine to go.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge is vested with the powers, duties and responsibilities
exercised by the former Alcoholic Beverage Control Commission and hearing officers pursuant to
Chapter 23 of Title 1. 21-S.C. Code Ann. § 61-1-55 (Supp. 1995).
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the statutory requirements for the
issuance of beer and wine permits. It provides in part that the location must be a proper one.
3. The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve 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).
4. Proximity of a location to a church, school, playground, or residence is a proper
ground, by itself, on which the location may be found unsuitable for a permit to sell beer and wine.
Byers v. S.C. ABC Comm'n, 305 S.C. 243, 401 S.E.2d 653 (1991).
5. The fact that there are protests to the issuance of the permit is not sufficient reason
by itself to deny the application. See 45 Am.Jur.2d Intoxicating Liquors § 162 (Supp. 1994); 48
C.J.S. Intoxicating Liquors § 119 (1981). By failing to appear at the hearing, Burke High School has
abandoned its protest. Further, the location has been licensed for the on-premises consumption of
beer and wine since 1968. There have been no problems with the permit at this location. The
residents do not object. There has been no change in circumstances to demonstrate that the location
is now unsuitable.
6. The location is also suitable for the sale of beer and wine to go. The applicant wants
to be able to sell beer and wine to go as well as for on-premises consumption. Section 61-9-320 does
not distinguish between on and off premises beer and wine permits. Because there are no separate
statutory criteria, the proposed location is also suitable for the issuance of an off-premise beer and
wine permit. The Department may issue a permit for the sale of beer and wine for off-premises
consumption, in addition to the on-premises permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby,
ORDERED, that the application of Willart Smith for an on-premises beer and wine permit for
at W & S Smith Grocery at 247 Congress Street, Charleston, South Carolina is GRANTED. The
Department shall issue the permit upon payment of the appropriate fees. If the applicant requests an
off-premises permit as well, the Department shall issue the permit upon payment of the appropriate
fees.
AND IT IS SO ORDERED.
_____________________________
ALISON RENEE LEE
Administrative Law Judge Division
August _____, 1996
Columbia, South Carolina |
