ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§ 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1996) for a
hearing pursuant to the application of Judy A. Alexander, d/b/a Sam's Party Shop ("Applicant or
Petitioner") for an on-premise beer and wine permit (AI 111049) for the premises located at 104
Pumpkintown Highway, Pickens County, South Carolina ("location").
A hearing was held on March 7, 1997, at the Anderson County Courthouse, Anderson, South
Carolina. The issue considered was the suitability of the proposed location
The application was protested by the East Pickens Baptist Church ("Church") and one
resident who lives in close proximity to the proposed location. Testifying at the hearing in opposition
to the issuance of the permit and license were Rev. Carl Francis Martin, Jr., pastor of the East Pickens
Baptist Church, Mrs. Jane E. Duncan, a member of the church and Mr. Grayson Earle Brown, a
nearby resident. The South Carolina Department of Revenue ("Department"), as set forth in its
Motion to Be Excused dated January 16, 1997, would have issued the permit but for the protest.
The Department's Motion to Be Excused from appearing at the hearing was granted by Order dated
January 30, 1997.
The application request is granted.
EXHIBITS
Certified copies of documents forwarded to the Administrative Law Judge Division from the
Department are made a part of the record. However, no probative value is given to any "petitions"
or "letters" signed by individuals protesting the issuance of the permit who were not present at the
hearing.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and subject matter of the hearing was timely given to
all parties and the protestants.
3. The Petitioner is seeking an on-premise beer and wine permit for a party shop located
at 104 Pumpkintown Highway, Pickens County, South Carolina. The location is on the outskirts of
the City of Pickens at the intersection of the Pumpkintown Highway and Farrs Bridge Road.
Although the location is in a mixed residential and commercial area, all properties fronting on the
Pumpkintown Highway are mostly business. Any residential areas are behind the location; other
businesses front on the highway.
4. Petitioner is married and is 37 years of age. She was accompanied to the hearing by
her husband. She has been a resident of Pickens County all her life.
5. Petitioner has never had a beer and wine permit revoked.
6. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Greenville News, a newspaper of general circulation in the local area where the
Petitioner proposes to engage in business.
7. Notice of the application has been given by displaying a sign for a minimum of fifteen
(15) days at the site of the proposed location.
8. Petitioner is of good moral character and has no record of any criminal convictions.
9. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 1996) concerning
the residency, age and moral character of the Petitioner are properly established as are the publication
and notice requirements.
10. The location is currently operated as a party shop by Petitioner as an employee of its
owner, Buddy Evans, as its manager. The Department and its predecessors, the South Carolina Tax
Commission and the Alcoholic Beverage Control Commission, have issued permits to Mr. Evans for
many years authorizing on premise sale and consumption of beer and wine at this location. Presently
he holds a permit at the location.
11. Petitioner intends to purchase the business and continue it as presently operated.
Further, she intends to open the business at approximately 9:00 a.m. Monday through Saturday and
close Monday, Tuesday and Wednesday nights at approximately 12:00 a.m., at 2:00 a.m. on Thursday
and Friday nights and at 12:00 midnight on Saturday night.
12. The Pickens Church of God is the closest church to the location. No one representing
that church appeared at the hearing to protest the issuance of the requested permit.
13. The property is not located within a municipality. Directly across the Pumpkintown
Highway from the proposed location is a grassy area; beside this area is the Pickens Church of God.
Also across the highway is an auto garage and a Bantam Chef restaurant. Dr. H.H. Thraser, a
chiropractor, has an office over the location. Directly across Farrs Bridge Road is an Amoco service
station which holds an off-premise beer and wine permit. No representative of any of above appeared
at the hearing to protest the issuance of the permit.
14. There are no schools or playgrounds within close proximity to the proposed location.
15. There is parking at the location for approximately 30 to 50 vehicles which is sufficient
to keep them out of the public right of ways or roads.
16. At the present there are pool tables, a juke box and video game machines inside the
location. Petitioner intends to keep them. No live music or bands are permitted to perform at the
location. Occasionally on Saturdays cookouts are held on the outside at the location. However, as
a normal rule, all music is confined to the inside.
17. Petitioner intends to actively participate as a hands-on proprietor and manager in the
management and operation of the sports bar/party shop.
18. The protestants voiced several concerns at the hearing. They objected to the
location's proximity to churches and residences in the neighborhood. Other concerns voiced by the
protestants were the safety of children in Pickens County who may be injured by patrons leaving the
location in an intoxicated condition, and the serious impact it will have upon increased congestion and
traffic at the intersection as well as within the immediate area which is already burdened with heavy
traffic.
19. The Department would have issued the beer and wine permit if not for the filed
protests.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and Chapter 23 of Title 1 of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division is empowered to
hear this case and issue a Final Decision.
2. S.C. Code Ann. § 61-4-520 (Supp. 1996) sets forth the requirements for the issuance
of a beer and wine permit which provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee
and servant of the applicant to be employed on the licensed premises, are of good moral
character.
2) The retail applicant is a legal resident of the United States, has been a legal resident of this
State for at least thirty days before the date of application, and has maintained his principal
place of abode in the State for at least thirty days before the date of application.
3) The wholesale applicant is a legal resident of the United States and has been a legal
resident of this State for at least thirty days before the date of application and has maintained
his principal place of abode in the State for at least thirty days before the date of application
or has been licensed previously under the laws of this State.
4) The applicant, within two years before the date of application, has not had revoked a beer
or a wine permit issued to him.
5) The applicant is twenty-one years of age or older.
6) The location of the proposed place of business of the applicant is in the opinion of the
department a proper one.
7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.
8) Notice of application has appeared at least once a week for three consecutive weeks in a
newspaper most likely to give notice to interested citizens of the county, city, or community
in which the applicant proposes to engage in business. The department must determine which
newspapers meet the requirements of this section based on available circulation figures.
However, if a newspaper is published in the county and historically has been the newspaper
where the advertisements are published, the advertisements published in that newspaper meet
the requirements of this section. An applicant for a beer or wine permit and an alcoholic
liquor license may use the same advertisement for both if the advertisement is approved by
the department.
9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of permit sought;
(b) state where an interested person may protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
3. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v.
South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). 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 (Ct. App.
1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and
determine the relevance and weight of any testimony and evidence offered.
4. Although "proper location" is not statutorily defined, broad discretion is vested in the
administrative law judge in determining the fitness or suitability of a particular location. Fast Stops,
Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). 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). Any evidence
adverse to the location may be considered. The proximity of a location to a church, school or
residences is a proper ground by itself, on which the location may be found to be unsuitable and a
permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
Further, the court can consider whether "there have been law enforcement problems in the area."
Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the court can
consider the proximity the absence of other licensed locations in the immediate vicinity and the
existence of students and small children in the area.
5. In considering suitability of location, it is relevant to consider previous history of the
location and to determine whether the testimony in opposition to a permit consists of opinions and
conclusions only or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
In this case, the testimony of the protestants consisted only of opinions of claimed detriments to
their community, consisting of contribution to hazardous and congested traffic conditions and safety
concerns for its children and citizens. Such is conjectural and without any factual support. No
church, school or playground are in sufficiently close proximity to the location to warrant the denial
of the permit's issuance. No valid evidence was provided at the hearing which convinced me that
the grant of this permit would greatly impact property values, increase stress in terms of the safety
and well-being of the citizens who live in the neighborhood or create any law enforcement problems.
Further, there is no history of problems at the party shop with customers, law enforcement or
neighbors during the many years Mr. Evans has sold beer and wine for on premise consumption.
There has been no showing that the sale of beer and wine for on premise consumption at this location
during the many years it has been permitted has adversely affected this community.
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 protestants object to the
issuance of the permit 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).
7. Permits and licenses issued by this state for the sale of liquor, beer and wine are not
property rights. They are, rather, privileges granted in the exercise of the state's police power to be
used and enjoyed only so long as the holder complies with the restrictions and conditions governing
them. The Administrative Law Judge, as the trier of fact authorized to grant the issuance of a permit,
may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax
Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
8. S.C. Code § 61-4-540 (Supp. 1996) states that upon a determination that an applicant
met the requisite qualifications and conditions, is a fit person and the proposed place of business is
a proper one, the department must issue the permit after payment of the fee as required by law.
9. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights
or property, but are rather privileges granted in the exercise of the police power of the State to be
used and enjoyed only so long as the restrictions and conditions governing them are complied with.
As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke
it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See
Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
10 Standards for judging the suitablity of a proposed location for the sale of beer, wine
or liquor are not determined by a local community's religious convictions. Criteria must be uniform,
objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful
enterprise in South Carolina, as regulated by the State.
11. S.C. Ann. § 61-2-160 (Supp. 1996) prohibits the issuance, renewal or transfer of a
permit or license under Title 61 if the applicant owes state or federal government delinquent taxes,
penalties or interest.
12. I conclude that the Petitioner has met her burden of proof in showing that she meets
all of the statutory requirements for holding a retail beer and wine permit at the proposed location.
I further conclude that the proposed location is a proper one for granting the permit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Judy A. Alexander, d/b/a Sam's Party Shop for an on-premise beer and wine permit for the party shop located at 104 Pumpkintown Highway, Pickens
County, South Carolina is granted, and
IT IS FURTHER ORDERED that the South Carolina Department of Revenue shall issue
the permit upon applicant's compliance with the requirements of S.C. Code Ann. § 61-2-160 (Supp.
1996) and upon applicant's payment of the required fees and costs.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 31, 1997 |
