SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) upon an application for a retail liquor license and an off-premises beer and wine permit filed with the South Carolina Department of Revenue (hereinafter referred to as "DOR") by Petitioner, for 4010 Highway 501 West, Conway, South Carolina. Protestants oppose issuance of the license and permit on the grounds that the location is unsuitable. A hearing was held January 29, 1997. Upon review of the relevant and probative evidence and applicable law, the permit and license are granted. Furthermore, any administrative violation found against Petitioner at the proposed location during a time in which Petitioner was operating under a temporary permit from DOR while the present application was pending, shall be considered a violation against the permit and/or license issued pursuant to this Order.

By a preponderance of the evidence, I find:

1. Petitioner filed an application with DOR on August 5, 1996, for an off-premises beer and wine permit and a retail liquor license for a location at 4010 Highway 501 West, Conway, South Carolina, designated as AI #110052 and AI #110053, respectively.
2. Petitioner is currently operating the proposed location as a convenience store and gas station.
3. The proposed location was first licensed to sell beer and wine for off-premises consumption in 1974, with J.R. Lawrimore as the store owner and licensee under permit #BW 723898. Lawrimore held a valid beer and wine permit for the proposed location from 1974 until 1996.
4. When previously licensed, the proposed location operated without violation or incident.
5. Upon filing the above-referenced application with DOR, Petitioner also applied for and was granted a 120-day temporary beer and wine permit to sell beer and wine during the pendency of the application.
6. In or about September, 1996, while operating the proposed location under the temporary permit, Petitioner was cited by law enforcement officers for selling beer to a minor. That matter is currently pending, with no final criminal and/or administrative action yet taken.
7. Petitioner seeks to maintain the operation of the proposed location as a convenience store and gasoline station with the sale of off-premises beer and wine.
8. Petitioner also seeks to add an attached but separate structure to the proposed location to house a retail liquor store.
9. There are two other licensed locations within .4 miles of the proposed location, including one across the street from the proposed location
10. The proposed location is in unincorporated Horry County, approximately four miles from Conway and eight miles from Aynor, along a commercial strip of Highway 501, amidst a rural area which includes residences, churches, business establishments, and farms.
11. Evergreen Original Free Will Baptist Church is located on Highway 501, approximately 647 feet west of the proposed location's convenience store entrance and approximately 734 feet west of the proposed location's retail liquor store entrance.
12. The church and proposed location are separated by a parcel of undeveloped land.
13. The Conway-Aynor Career School is located approximately 2.5 miles from the proposed location.

1. The closest currently licensed retail liquor store to the proposed location is located approximately six miles away in Conway.
2. The next closest business establishment licensed to sell beer and wine is located within one-half mile of the proposed location.
3. There are numerous residences within one-half mile of the proposed location.
4. The closest residence to the proposed location is located immediately behind and adjacent to the proposed location and is the residence of J.R. Lawrimore, the former licensee.
5. Petitioner resides within two blocks of the proposed location.
6. There are no churches, schools, or playgrounds within 500 feet of the proposed locations.
7. The hours of operation of the convenience store are 6:00 a.m.-11:00 p.m., Monday -Saturday.
8. Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
9. Petitioner has not had a permit/license revoked in the last two years. Petitioner is of good moral character.
10. Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.
11. Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, and DOR.
12. Upon motion granted, DOR was excused from appearance at and participation in the contested case hearing on the ground that DOR would have granted the permit and license but for the unanswered question of the suitability of the proposed location. DOR did not appear at the hearing nor express opposition to the issuance of the permit.
13. Petitioner's application is opposed by: Rev. Billy Poe Jones, Pastor of Evergreen Original Free Will Baptist Church; Jerry Edwards, a local resident; and Chief Deputy Michael Lowder, Horry County Sheriff's Department. The Protestants expressed concern that if the permit and license were granted, the community would experience increases in crime, littering, traffic hazards, and alcohol-related problems.
14. While Protestants oppose issuance of both the beer and wine permit and the retail liquor license, they are primarily opposed to the issuance of the retail liquor license.
15. Other than the citation issued in September, 1996, which has yet to be adjudicated, there appears to be no evidence of any improper operation or adverse impact of the proposed location since it was first permitted to sell beer and wine in 1974.
16. Neither the beer and wine permit sought nor the liquor license sought allow for on-premises consumption.
17. Besides speculation offered by the Protestants, there was no evidence that the operation of a retail liquor store adjacent to the existing licensed convenience store will have any materially different impact upon the community than the convenience store alone.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:

1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1996) and Chapter 23 of Title I of the 1976 Code, as amended.
2. S.C. Code Ann. § 61-9-320 (Supp. 1996) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.
3. The issuance of retail liquor licenses is authorized under the provisions of S.C. Code Ann. § 61-3-410(3) (Supp. 1996).
4. A permit or license must not be issued if an applicant does not meet the standards of S.C. Code Ann. § 61-3-730 (Supp. 1996).
5. S.C. Code Ann. § 61-3-440 (Supp. 1996) dictates that a retail liquor store not located within a municipality must be a minimum of five hundred (500') feet from any church, school, or playground. 23 S.C. Code Ann. Regs. 7-11 (1976) provides the method for measuring the distances referred to in § 61-3-440. No schools, churches, or playgrounds are within the prescribed proximity to render the proposed location unsuitable.
6. 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 license/permit to sell liquor, beer, and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (S.C. App. 1984).
7. 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).
8. The lack of any evidence that the proposed location is any less suitable now than it was or has been since first licensed to sell beer and wine in 1974 supports the issuance of the permit and license applied for now. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
9. Only generalities, opinions, and conclusions, without factual support, were offered to support Protestants' contention that issuance of the license and permit would detrimentally affect the well-being of the community. Such unsupported allegations are an insufficient basis for denial. 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).
10. The proposed location is suitable and proper, in light of the past history of the location, the existence of other licensed locations in the vicinity, and the lack of any relevant and probative evidence to the contrary.
11. Petitioner meets the statutory requirements for issuance of a beer and wine permit and retail liquor license.

ORDER

IT IS THEREFORE ORDERED that DOR issue to Petitioner the off-premises beer and

wine permit and retail liquor license applied for.

IT IS FURTHER ORDERED that any administrative violation against Petitioner at the proposed location found to have occurred during a time in which Petitioner was operating under a temporary permit from DOR while the present application was pending, shall be considered a violation against the permit and/or license issued pursuant to this Order.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

February 26, 1997

Columbia, South Carolina