ORDERS:
FINAL ORDER AND DECISION
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 filed with the South Carolina Department of Revenue (hereinafter referred to as "DOR")
by Petitioner, for 2729 Carlisle/Santuc Hwy., Union, South Carolina. Protestants oppose
issuance of the license on the grounds that the location is unsuitable. A hearing was held
March 11, 1997, at the Spartanburg County Judicial Center. Upon review of the relevant and
probative evidence and applicable law, the license is granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
- Petitioner filed an application with DOR on September 30, 1996, for a retail liquor
license for a location at 2729 Carlisle/Santuc Hwy., Union, South Carolina, designated as
AI #111386.
- The proposed location is in Union County, approximately eight miles from Union on
Highway 215, near State Secondary Road 36, in a rural area which includes residences,
churches, business establishments, and farms.
- The proposed location was previously licensed to sell beer and wine for off-premises
consumption in 1992 under the trade name of Adam's Grocery, with Dewey W. Petty, Jr.
as the store owner and licensee under permit AI #89778.
4. While previously licensed, the proposed location did not create any problems for the
surrounding community.
5. Cane Creek Presbyterian Church is located approximately 854 feet from the proposed
location's retail liquor store entrance. The church and proposed location are separated by
a parcel of undeveloped land and railroad tracks.
6. Salem Baptist Church is located approximately 1,043 feet from the proposed location's
retail liquor store entrance.
7. Sims Jr. High School is located approximately 7.7 miles from the proposed location.
8. A park and playground are located approximately four miles from the proposed location.
A school bus stop is located approximately 0.7 mile from the proposed location.
9. While several families with children reside in the area, the amount of child traffic is not
unusual in the immediate area of the proposed business.
10. The closest business establishment licensed to sell beer and wine is located within one-half mile of the proposed location.
11. The most proximate retail liquor store is approximately six miles from the proposed
location.
12. There are ten residences within one-quarter mile of the proposed location with the nearest
residence located approximately 320 feet from the proposed location.
13. Petitioner resides within four miles of the proposed location.
14. Petitioner will manage the proposed location with assistance from his father.
15. Petitioner's full-time occupation is a recruiter for the South Carolina Army National
Guard.
16. Petitioner previously operated a cafe and a bait and produce store at the proposed location.
17. There are no churches, schools, or playgrounds within 500 feet of the proposed location.
18. Only three non-injury traffic accidents have occurred at the intersection of US 215 and
State Secondary Road 36 since January 1, 1991.
19. A highway patrolman resides across the street from the proposed location and would be
available to provide protection and security for the proposed location and surrounding
areas should the need arise.
20. 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.
21. Petitioner has not had a permit/license revoked in the last two years. Petitioner is of good
moral character.
22. 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.
23. Notice of the time, date, place, and subject matter of the hearing was given to the
Petitioner, Protestants, and DOR.
24. 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.
25. Petitioner's application is opposed by Rev. M. Earl Lee, Pastor of the Salem Baptist
Church, and the following local residents: William and Mary Dixon, Greg Sparkman,
Wilbur and June Smith, James W. Shaw, Jennifer Jenkins, Connie L. Barnado, Carolyn
B. Crocker, Jo and Edwin Bailey, Wilbur and Carol Smith, Mary Rivers Bentley, and
Ralph and Frances Jenkins.
26. The Protestants expressed concern that if the license were granted, the community would
experience increases in crime, traffic hazards, and alcohol-related problems, but
Protestants did not offer any probative evidence to substantiate their concerns.
27. Protestants did not express concern about Petitioner's fitness as a licensee.
28. The liquor license sought does not allow for on-premises consumption.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
- 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.
- The issuance of retail liquor licenses is authorized under the provisions of S.C. Code
Ann. § 61-3-410(3) (Supp. 1996).
- 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).
- S.C. Code Ann. § 61-3-440 (Supp. 1996) provides 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.
- 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 (Ct.App. 1984).
- 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).
- 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).
- 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.
- Petitioner meets the statutory requirements for issuance of a retail liquor license.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Petitioner the retail liquor license
for which he has applied.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
March 21, 1997
Columbia, South Carolina |
