ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§ 61-1-55, et seq. (Supp. 1995) and S.C. Code Ann. §§ 1-23-310 et seq (Rev. 1986 & Supp. 1995)
for a contested case hearing on the application of Roberta Davis-Brown for an on-premises beer and
wine permit for Brown Sugars County Shack located on Route 1 in Georgetown, South Carolina.
After notice to the parties, a hearing was conducted on April 15, 1997. Based upon the evidence
presented, the on-premises permit is granted.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their cases by a preponderance of the evidence and taking into account the credibility of
the witnesses:
1. The applicant, Roberta Davis-Brown, is over the age of twenty-one and is a resident
of South Carolina and of the United States.
2. She is a person of good moral character.
3. She currently holds an off-premises beer and wine permit for the location known as
Brown Sugars Country Shack located at Route 1, Box 79, on U.S. Highway 17 in Georgetown, South
Carolina.
4. The current location opened in October 1995, and there have been no violations
issued since that time.
5. The business is open 9 a.m. until 7 p.m. Monday through Saturday. It is closed on
Sunday. She does not anticipate any changes in the hours of operation for the location.
6. The proposed location is a country store selling beer, wine, snacks, and other
convenience-store type items. The location is also a drop off and pick up point for people who are
waiting for rides to take them to and from work.
7. The applicant is seeking an on-premise beer and wine permit because occasionally
people consume beer and wine in the parking lot outside of the store and she does not want to risk
having citations issued if she is not able to patrol outside.
8. There are signs posted asking people not to drink on the premises. "No loitering"
signs are posted. The premises are patrolled frequently to prevent people from drinking beer and
wine on the premises, however; it is difficult for employees to monitor both inside and outside. If
granted the on-premises permit, her practice would continue that she would not allow people to drink
inside the store and would continue to discourage drinking in the parking lot.
9. There are no churches or schools in the vicinity.
10. Georgetown County recently built a County Parks and Recreation facility near the
proposed location which opened in November 1996. This park is located on Secondary Highway
22-24 behind the proposed location on the opposite side of the highway. The park operates from
7:30 a.m. until 11 p.m. It has a basketball court, jungle gyms, a slide, and a play area for younger
children.
11. Mercury-vapor halogen lights illuminate the park. Access to the park is unrestricted.
Although Georgetown County intends to erect a fence, there are no fences or gates around the
playground.
12. A wooded path leads from the highway into the playground. The distance from the
proposed location to entrance of the park using the wooded path is 215 feet. The main entrance to
the playground is 475 feet from the front door of the proposed location.
13. Other licensed locations on Highway 17 are approximately 400 feet from the
proposed location. On Highway 22-24, there is a Citgo gas station which has a beer and wine to go
permit and B More Game Room which has an on-premise beer and wine permit.
14. The Game Room is located closer to the park than the proposed location.
15. A representative from the Sampit United Methodist Church appeared at the hearing
to protest the on premise beer and wine permit. Sampit United Methodist Church is located three
tenths of a mile from the proposed location. The church is protesting the application because of
pedestrian and vehicular traffic at the intersection of Secondary Highway 22-24 and Highway 17A
and fear of accidents. Approximately 250 feet from the proposed location, at the fork in the road,
is a residence where small children live. The church is also concerned about crime and drug activity
which may occur in the area.
16. Another protester submitted a petition indicating that the proposed location's close
proximity to the park was a reason to deny the permit. A number of people that signed the original
protest also sent letters indicating that they were withdrawing their protest.
17. The protester expressed concern about the increase in consumption in the park and
the close proximity to the park. The entrance to the proposed location is on Highway 17 whereas
the entrances to both the park and the game room are on Highway 22-24.
18. No evidence was presented that would indicate that the change of the permit from an
off-premises to an on-premises beer and wine permit would create any problems in either traffic or
in any other activity in this location.
19. There was no evidence that the location as currently operated presents any problems
for the Sampit community.
20. The SLED agent who investigated the application did not observe any children or any
pedestrian traffic located in this area. He did not see any children playing in the area.
21. There is adequate police protection. Law enforcement patrol the area, including the
park. The availability of law enforcement to handle any problems both in the park and at the
proposed location is sufficient.
22. A representative of the Georgetown County Sheriff's Office was interviewed by the
SLED agent and indicated that there was no serious problem with criminal activity in the area of the
proposed business and that none was expected to be created by the business even if it was changed
from an off-premises to an on-premises permit.
23. Notice of the application was published in the Georgetown Times for the appropriate
time period and was posted at the location as required.
24. Next door to the proposed location is a retail liquor store which is owned and
operated by the applicant, Roberta Davis-Brown.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. The Administrative Law Judge is vested with the powers, duties and responsibilities
of hearing officers of the former Alcoholic Beverage Control Commission and hearing officers
pursuant to Chapter 23 of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1995).
2. S.C. Code Ann. § 61-9-320(6) (Supp. 1995) provides the statutory requirements for
the issuance of on-premise beer and wine permits. It provides that no permit authorizing the sale of
beer or wine may be issued unless "[t]he location of the proposed place of business of the applicant
is in the opinion of the department a proper one. The department may consider, among other factors,
as indication of unsuitable location, the proximity to residences, schools, playgrounds, and churches.
. . ."
3. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness
or suitability of the proposed business location for a permit to sell beer and wine using broad, but
not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
4. Although "proper location" is not statutorily defined, broad discretion has been vested
in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301
(1972); and Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
5. The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve 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).
6. Proximity of a location to a church, school, playground or residence is a proper
ground on which the fact finder may find the location to be unsuitable for the issuance of a beer and
wine permit. See Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991)
(construing S.C. Code Ann. § 61-9-320).
7. The business location has been found to be a suitable one in the past by virtue of the
issuance of permits by the Department. Although the construction of the park in proximity to the
location is a change in circumstances to review the suitability of the location for a permit to sell beer
and wine, the evidence reveals that the change in the permit would not create any additional burden
on the community and would not adversely impact the community.
8. The concerns expressed by the protestors are not supported by any evidence.
9. The business has operated for over a year with no incidents requiring law
enforcement. There was evidence that the applicant does not intend to change the operation of the
business to encourage consumption of beer and wine on the premises; instead she is seeking
protection against the issuance of a citation for allowing consumption on the premises in the parking
lot when she or her employees cannot patrol.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Department of Revenue shall issue an on-premises beer and wine permit
to Roberta Davis-Brown d/b/a Brown Sugar's Country Shack located on Route 1, Box 79 in
Georgetown, South Carolina upon the payment of the appropriate fees.
AND IT IS SO ORDERED.
ALISON RENEE LEE
Administrative Law Judge
Edgar A. Brown Building (Suite 224)
Post Office Box 11667
Columbia, South Carolina 29211
This the 23 day of May, 1997 |
