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 Cheryl A.
Dillion. Petitioner seeks an on-premises beer and wine permit (AI 107857) and a sale and
consumption license ("minibottle") license (AI 107858) for a restaurant/lounge located at 1604
Easley Bridge Road, within the city of Greenville, Greenville County, South Carolina.
After timely notice to the parties and the protestants, a hearing was held at the
Administrative Law Judge Division in Columbia, South Carolina. There were two protestants of
record, Mike Ennis of the Wesleyan Church and Wesley Burbage. Only Mr. Burbage appeared.
The protestants did not move to intervene as parties. The issues considered at the hearing were:
(1) the 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.
The application for the on-premises beer and wine permit and minibottle license is hereby
granted. FINDINGS OF FACT
Having carefully considered all testimony 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 on-premises beer and wine permit and a minibottle license for a
restaurant located within the city of Greenville, South Carolina at 1604 Easley Bridge Road.
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 situated in a commercial area off of a four-lane major
thoroughfare.
4. No church, school, or playground is within close proximity to the proposed
location. The nearest church is approximately 800 feet away from the proposed location.
5. The proposed location is currently operated as a restaurant which serves lunch and
dinner, with hours of operation from 9:00 a.m. to 12:00 a.m., except on Fridays where the hours
of operation will be extended. Menus are available and the business is currently engaged primarily
and substantially in the preparation and service of meals.
6. The proposed location has seating capacity for at least seventy-five (75) people
simultaneously at tables for the service of meals.
7. A Class A restaurant license has been issued to the applicant for the
restaurant/lounge.
8. The applicant leases the proposed location from Roy D. Thurston.
9. No concrete evidence was presented to show that the issuance of an on-premises
beer and wine permit and a minibottle license, as requested by the applicant, would have an
adverse impact on the community.
10. The applicant is of good moral character. The State Law Enforcement Division
("SLED") completed a criminal background investigation of the petitioner. 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 her principal residence in the state for at least thirty (30) days prior
to the date of making application for an on-premises beer and wine permit and minibottle license.
12. Notice of the application appeared in The Greenville News, 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.
13. The Department did not oppose petitioner's application.
14. The protestant, Wesley Burbage, previously held a beer and wine permit and a
minibottle license at the proposed location, d/b/a Wesley's Nightlife. The protestant did not offer
any concrete reasons for opposing the petitioner's application. In fact, the protestant conceded
that he was disappointed that his business operation has ceased at the proposed location.
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 the suitability of a location is not necessarily a function solely
of geography. It involves an infinite variety of considerations related to the nature and operations
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. There was not a sufficient evidentiary showing that the present location is
unsuitable or that the issuance of an on-premises beer and wine permit and a minibottle license
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
given the commercial nature of the area in which the proposed location is situated.
7. The denial of a license or permit to an applicant on the ground 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. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973).
8. Without sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a
permit or license is protested is not a 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).
9. The location is suitable and proper for the issuance of an on-premises beer and
wine permit and a minibottle license.
10. The applicant satisfies all of the statutory requirements for holding an on-premises
beer and wine permit and a minibottle license.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that an on-premises beer and wine permit and a minibottle license is granted
to Cheryl A. Dillion for the location at 1604 Easley Bridge Road, Greenville, South Carolina.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an
on-premises beer and wine permit and a minibottle license upon the payment of the required fee(s)
and cost(s) by the applicant.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
July 18, 1996 |
