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 Michael L. Fuller,
Sr. Petitioner seeks an off-premises beer and wine permit (AI 109118) for a convenience store
which is located at 515 West Godfrey Street, within the city of Pageland, Chesterfield County,
South Carolina.
After timely notice to the parties and the protestant, a hearing was held at the
Administrative Law Judge Division, Columbia, South Carolina. Rebecca McKinnon, the
protestant of record, appeared at the hearing. The protestant did not move to intervene as a party.
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 application for an 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 a convenience store
located at 515 West Godfrey Street, Pageland, South Carolina.
2. Petitioner's application to the South Carolina Department of Revenue
("Department") is made a part of the record, sua sponte.
3. The proposed location is located directly off of Godfrey Street in Pageland, South
Carolina.
4. The area surrounding the proposed location is commercial/residential in nature.
5. No church, school or playground is within close proximity to the proposed
location.
6. Other businesses currently operating in the immediate vicinity of the proposed
location include: a tire company, storage/warehouse, L & M Grocery, K Bob's, and Pop's Place.
L & M Grocery is a convenience store which holds an off-premises beer and wine permit. Pop's
Place is a bar and grill which holds an on-premises beer and wine permit. T & L is another
convenience store in the area located approximately two blocks away from the proposed location,
which holds an off-premises beer and wine permit.
7. Petitioner has operated and managed the proposed location as a convenience store
for approximately one year. The daily hours of operation at the proposed location are from 11:00
a.m. to 10:00 p.m. on Sunday through Thursday and 11:00 a.m. to 12:00 a.m. on Friday and
Saturday.
8. Petitioner leases the proposed location from K Bob's, Inc.
9. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of petitioner Michael L. Fuller, Sr. The SLED report revealed no criminal violations;
and, petitioner has not engaged in acts or conduct that imply the absence of good moral character.
10. 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.
11. 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.
12. The Department did not oppose petitioner's application.
13. Rebecca McKinnon testified in opposition to the permit in question. She owns
four homes which are located on Hickory Street and Godfrey Street, in the immediate vicinity of
the proposed location. As justification for denial of an off-premises beer and wine permit, the
protestant cited: (1) concern with the hours of operation of the convenience store; (2) the
possibility of customers traveling to the convenience store on foot and loitering behind her
property located on West Godfrey Street; and, (3) the possible negative impact of the proposed
location on the community.
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. 160, 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 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. This
tribunal acknowledges the protestant's opposition to the issuance of the permit, in question, and
also acknowledges her right to hold such sentiments, however, the basis of this opposition is
without merit and is not within the statutory grounds for refusal. Petitioner's business has operated
for at least one year. 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.ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department of Revenue issue an off-premises beer and wine permit to
Michael L. Fuller, Sr. for a location at 515 West Godfrey Street, Pageland, 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
Post Office Box 11667
Columbia, South Carolina 29211-1667
September 27, 1996
Columbia, South Carolina |
