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 A. Linder.
Petitioner seeks an on-premises beer and wine permit (AI 109184)
for a restaurant located at 311 Bennett Dairy Road, outside the
city of Spartanburg, Spartanburg 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. The protestants moved to intervene as
parties and were granted leave to intervene by order of this
tribunal dated October 11, 1996. At the hearing, J.W. McCraw
made a motion to intervene and act as spokesperson for the
respondent-intervenors. The motion was granted. 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 on-premises beer and wine permit 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
for a restaurant located at 311 Bennett Dairy Road, outside the
city of Spartanburg, Spartanburg County, South Carolina.
2. Petitioner's application to the South Carolina
Department of Revenue ("Department") was made a part of the
record by reference, without objection.
3. The proposed location is immediately surrounded by open
fields and is situated off of Bennett Dairy Road, a two lane well
traveled thoroughfare. The area in which the proposed location
is situated is rural and consists of a mixture of commercial ,
industrial, and residential properties. The building which
houses petitioner's business has been in existence for eleven
years and has been previously operated as a restaurant for at
least nine years.
4. There are other businesses in the vicinity of the
proposed location which hold off-premises beer and wine permits.
5. No church, school, or playground is within close
proximity to the proposed location.
6. Cannon's Elementary School is located approximately
three to four tenths of a mile away from the proposed location.
Cannon Baptist Church and Peace Free Will Baptist Church are
located approximately nine tenths and seven tenths of a mile away
from the proposed location, respectively.
7. Petitioner owns the land and building where his
business is located.
8. Petitioner has operated and managed the proposed
location for four months. The restaurant serves breakfast and
lunch from 6:30 a.m. to 2:00 p.m. and offers catering services
after 2:00 p.m.
9. 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.
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 on-premises beer
and wine permit.
11. Notice of the application appeared in the Spartanburg
Herald-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 the petitioner's
application.
13. The respondent-intervenor, J.W. McCraw, testified in
opposition to the permit in question. As justification for
denial of the on-premises beer and wine permit, the respondent-intervenor cited: (1) the proximity of the proposed location to
residences and churches and (2) a concern for "traffic flow."
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a
matter of law, the following:
A. 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 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).
6. 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. 1995); 48 C.J.S. Intoxicating Liquors 119 (1981).
B. The respondent-intervenor raised two specific grounds which
he alleges warrants the denial of petitioner's permit. This
tribunal disagrees. The churches and school mentioned herein are
not within close proximity to the proposed location. Instead,
they are all located over 1000 feet away. Even though there are
residences in the general vicinity of the proposed location, the
nature of petitioner's business activity is suitable and proper
given the commercial, industrial, and residential nature of the
surrounding area. Furthermore, the building which houses
petitioner's restaurant has operated as a restaurant nine of the
past eleven years of its existence. There has been no concrete
evidentiary showing that the present location is unsuitable or
that the issuance of an on-premises beer and wine permit would
have an adverse impact on the community. Accordingly, no
substantive evidence was offered to establish that the granting
of the permit in question would result in any traffic flow
problems.
Petitioner meets all of the criteria enacted by the South
Carolina General Assembly for the issuance of an on-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
respondent-intervenor are mainly rooted in his aversion to the
proposed location selling alcoholic beverages for on-premises
consumption. This tribunal acknowledges the opposition to the
issuance of the permit in question and also acknowledges the
right of the respondent-intervenor to hold such sentiments.
However, this opposition is without merit and not within the
statutory grounds for refusal of the permit. See 45 Am. Jur. 2d
Intoxicating Liquors 162 (Supp. 1994); 48 C.J.S. Intoxicating
Liquors 118, 119, 121 (1981).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it
is hereby:
ORDERED that the Department of Revenue issue an on-premises
beer and wine permit to John A. Linder, for a location at 311
Bennett Dairy Road, outside the city of Spartanburg, Spartanburg
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
P.O. Box 11667
Columbia, South Carolina 29211-1667
October 31, 1996 |
