SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996)and S.C. Code Ann. § 61-1-55 (Supp. 1996) upon the filing of an application for an on-premises beer and wine permit for 1939-B Highway 15 South, St. George, South Carolina, in Dorchester County. Following the receipt of written protests to the issuance of the permit, the matter was transmitted by South Carolina Department of Revenue ("DOR") to the ALJD for a contested case hearing. A hearing was held on February 7, 1997. The issues considered were the suitability of the proposed business location for the sale of beer and wine and the suitability of the proposed business activity. Upon review of the relevant and probative evidence and applicable law, the application for an off-premises beer and wine permit is granted.

By a preponderance of the evidence, I find:

1. Petitioner seeks an off-premises beer and wine permit for a location at 1939-B

Highway 15 South, St. George, South Carolina, in Dorchester County, having filed an application with the DOR, AI #110960.

1. The DOR file was incorporated into the record of the hearing.
2. Petitioner operates the proposed location as a convenience store, selling snacks, grocery, and convenience items.
3. The proposed location is in unincorporated Dorchester County, in the Grover community, approximately six miles from St. George.
4. The proposed location has been open and operating since October 24, 1996.
5. Since its opening, there have been no disturbances or trouble at the proposed location.
6. The proposed location is the only retail grocery outlet in the community.
7. The proposed location's hours of operation are: 8:30 a.m.-6:00 p.m., Monday-Saturday; and closed on Sunday.
8. There are no other licensed locations within the immediate Grover community.
9. Petitioner has worked in or managed convenience stores with beer and wine permits for approximately fifteen years and has never been cited for any administrative or criminal violations.
10. The immediate area surrounding the proposed location is rural and residential in nature.
11. There are approximately eleven residences within 600 feet of the proposed location.
12. Grover United Methodist Church is located approximately 580 feet from the proposed location.
13. There are no schools in proximity to the proposed location.
14. The closest licensed location to the proposed location is approximately one mile south of the proposed location.
15. Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained her principal residence in South Carolina for more than thirty days.
16. Petitioner has not had a permit/license revoked in the last two years.
17. Petitioner is of good moral character.
18. 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.
19. Notice of the time, date, place, and subject matter of the hearing was given to all parties and protestants.
20. Upon motion granted, DOR was excused from appearance at and participation in the contested case hearing on the ground that it 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.
21. Appearing at the hearing in protest to the issuance of a beer and wine permit for the proposed location were: Rev. Frederick R. Davis, Pastor of Grover United Methodist Church; Thomas McElhaney, James E. Murray, and Guy R. Ackerman, local residents.
22. None of the Protestants oppose the operation of the store or allege that Petitioner is unfit to hold a permit. Protestants generally oppose the sale of beer and wine, particularly in their community.
23. Protestants expressed concern that issuance of the permit would create crime and safety problems in the area but offered no factual support for the allegations.

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 1-23-310, et seq. (Supp. 1996).
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. 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 Commission, 281 S.C. 566, 316 S.E.2d 705 (S.C. App. 1984).
4. 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).

1. The fact that witnesses concede that the establishment is presently an asset to the community and is well-run, clean, and orderly, supports finding that the proposed location

is suitable for issuance of beer and wine permit. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

1. 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).
2. The issuance of the permit would not have an adverse impact upon the surrounding community.
3. Petitioner's extensive experience in managing licensed locations without incident or violation is persuasive evidence of her ability to oversee the business activity of the proposed location and operate the proposed location in a responsible manner.
4. Petitioner meets the statutory requirements for issuance of a beer and wine permit.

10. Pursuant to ALJD Rule 29(D), all issues raised in these proceedings not expressly addressed in this Order are deemed denied.

ORDER

IT IS THEREFORE ORDERED that DOR issue to Petitioner the off-premises beer and wine permit applied for.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

February 28, 1997

Columbia, South Carolina