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 Hugh E. Bradley, d/b/a Ed's Grocery ("Applicant" or
"Petitioner") seeking an on-premise beer and wine permit (AI 111599) for the premises located at
500 Old Manning Road, Sumter County, South Carolina ("location").
A hearing was held on April 21, 1997, at the offices of the Administrative Law Judge
Division ("Division"), Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina.
The issue considered was the suitability of the proposed location.
The application was protested by the Pine Grove Baptist Church ("Church") by its pastor,
Rev. Don Riner and by John Kelly. Several protestants appeared at the hearing, including John
Kelly, the music coordinator for the church; Mrs. Bonnie Ardis, a member of the church; as well as
Mrs. Marguerette Langland and John Perry Poole, residents of the community. All of the protestants,
except Mrs. Ardis, testified at the hearing in opposition to the issuance of the permit. The South
Carolina Department of Revenue ("Department"), as set forth in its Motion to Be Excused dated
February 19, 1997, stated that there was no controversy between the Petitioner and the Department
and that the sole issue is the question of the suitability of the location based upon the filed protests.
The Department's Motion to Be Excused from appearing at the hearing was granted by Order dated
March 6, 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. Further, at the hearing the protestants placed into the
record, without objection, a "petition," four photographs of the location and roadway in front of the
location along with a statement and a general location drawing with references to other locations
within the general area. The petitioner placed into the record, without objection, a petition of
individuals in support of the issuance of the permit, three photographs taken of the exterior of the
location, a copy of the retail permit (AI 0061254) as issued to Mrs. Mary W. Geddings, with an
expiration date of August 31, 1997, and a letter from Sumter County Sheriff Tommy R. Mims dated
April 17, 1997, wherein he states that the sheriff''s department has "no objection to a permit being
issued at this location."
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 neighborhood
grocery store located at 500 Old Manning Road, Sumter County, South Carolina. The location is
outside the city limits of Sumter.
4. The location is located within a rural area, fronting on the Old Manning Road. It is
close to that point where highway road S 43-401 intersects with the Old Manning Road. The speed
limit on the highway at the location is 45 miles per hour.
5. The Pine Grove Baptist Church is located approximately 673 feet from the location.
There are residences on both sides of the highway in the vicinity of the location. Lakewood High
School, which is attended by tenth, eleventh and twelfth grade students, is approximately 1700 feet
from the location.
6. The nearest alcohol-licensed business is approximately one half mile in distance from
the location on Old Manning Road.
7. The location was operated as a community grocery store for many years by the late
Ed Geddings. He had a beer and wine permit for those years, as did those individuals who operated
the location prior to his tenure. Since his death, his widow, Mrs. Mary Geddings has continued the
operation of the grocery store and has maintained a permit for the sale of beer and wine at the
location. For the last 3 years, it has been managed by Wayne Geddings, a cousin of her late husband.
8. The applicant is fifty (50) years of age and has lived in Sumter County all his life.
His primary occupation is as a salesman for his steam cleaning business. He will continue to work
in his business and work part-time at the location.
9. It is the intention of the applicant, if he purchases the business from Mrs. Geddings
and obtains this permit, to continue with Wayne Geddings managing the grocery store. However,
applicant intends to increase the grocery inventory to make it a more viable business supplying the
demands in the neighborhood.
10. The applicant has never had a beer and wine permit revoked.
11. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Item, a newspaper of general circulation in the local area where the Petitioner proposes
to engage in business.
12. 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.
13. Petitioner is of good moral character.
14. 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.
15. Petitioner intends to purchase the business and continue it as presently operated.
Further, he intends to open the business at approximately 11:00 a.m. to 11:30 a.m. Tuesday through
Saturday, closing on Saturday evening not later than 12:00 a.m. and normally at 10:00 p.m. Tuesday
through Friday; however, if business is good, then the location may stay open as late as 1:00 a.m.
Tuesday through Friday nights.
16. The Pine Grove Baptist Church is the closest church to the location. Both Mr. Kelly,
the music coordinator and Mrs. Bonnie Ardis, member, appeared at the hearing on behalf of the
church to protest the issuance of the requested permit. Mr. Poole, the nearest resident to the location
and a member of the church, appeared and testified in opposition to the permit issuance. Mrs.
Langland, a resident of the community and a frequent visitor to services at the church, objected also.
17. The closest school is the Lakewood High School which is approximately 0.5 mile
from the location. No playgrounds are close by.
18. There are parking spaces for approximately twenty-five cars at the location. This is
sufficient for the clientele that applicant intends to serve. There should not be a problem with cars
parking in the public right of way.
19. At the present there are two pool tables, a juke box, two video game machines and
three video poker machines inside the location. Petitioner intends to keep them. No live music,
bands or entertainment are permitted to perform at the location. There are no outside speakers at the
location.
20. Petitioner intends to actively participate in the management and operation of the
business.
21. The protestants voiced several concerns at the hearing. They objected to the
location's proximity to the church, school and residences in the neighborhood. Other concerns
voiced by the protestants were the safety of residents in the neighborhood from automobiles leaving
the location at high rates of speed and noise from the squealing of tires. Other complaints were of
teenage boys smoking behind the location and of a man urinating outside the location during the day.
22. The Sumter County Sheriff does not object to the issuance of the permit to the
applicant.
23. The Department would have issued the beer and wine permit but for the protests that
were filed.
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 and 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).
4. Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact (judge) in determining the fitness or suitability of a particular location. Fast Stops, Inc.
v. Ingram, 276 S.C. 593, 281 S.E. 2d 119 (1981); Ronald F. Byers v. S.C. ABC Commission, 281
S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984).
5 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.
6. 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 judge 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 judge can consider the proximity or the
absence of other licensed locations in the immediate vicinity and the existence of students and small
children in the area.
7. 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 or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E. 2d 801 (1973).
8. In this case, the protestants do not object to a permit being issued for the sale of beer
and wine at the location for off-premise consumption. Their concerns address loud noise from the
squealing of tires, public urination outside the location, children crossing the highway while
attending church, children playing the video game machines at the store, and teenagers smoking
behind the store. All of these objections may be possible concerns if they occur under the applicant's
management. However, I do not find that these isolated incidents are sufficient to deny the issuance
of the permit to the applicant. The evidence does not rise to the level of that required to show a
detriment to the community. Further, there is no evidence of any hazardous or congested traffic
conditions or safety concerns for the children and citizens of the community. Any such evidence
would be conjectural and is without any factual support. The evidence provided at the hearing by
the protestants does not convince 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. Also, there is no history of problems at the
party shop with customers, law enforcement or neighbors during the many years the proprietors have
sold beer and wine for on-premise consumption.
This tribunal is particularly concerned with protecting the safety and well-being of
citizens in the community they live in. They are entitled to live in their homes in a quiet and
peaceful manner. If a situation at a location rises to the level that noise emanating from a location,
permitted or licensed by the Department, interferes with these rights, then such evidence may be
presented to the Department at the time of any future renewal or issuance of a permit.
9. Without sufficient evidence of an adverse impact on the community, the application
must be granted 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).
10. Permits and licenses issued by this state for the sale of liquor, beer and wine are not
property rights. Rather, they are 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).
11. S.C. Code Ann. § 61-4-540 (Supp. 1996) states that upon a determination that an
applicant meets 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.
12. Standards for judging the suitability 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, regulated by the State.
13. S.C. Code 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.
14. A cardinal rule of statutory interpretation is that one must first look to the language
of the statute to determine its meaning. Multimedia Inc. v. Greenville Airport Commission, 287 S.
C. 521, 339 S.E. 2d 884 (Ct. App. 1986). When the terms of a statute are plain and unambiguous,
the courts must apply those terms according to their literal meaning. Holley v. Mount Vernon Mills,
Inc., 312 S.C. 320, 440 S.E. 2d 373 (1994). In this instance, the language of the statute is plain.
S. C. Code Ann. Section 61-4-520 (Supp. 1996) specifically provides that the considerations set forth
in 61-4-520 (7) are not applicable to "locations" licensed before the effective date of that section.
Black's Law Dictionary defines location as a "site or place where something is or may be located".
(6th ed. 1990). (1) Petitioner argues that since the location was licensed prior to April 21, 1986, the
issue of "suitability" cannot be addressed by this tribunal. Since the evidence is clear that this
particular location was permitted for the sale of beer and wine long before the date of April 21, 1986,
it is true that this tribunal cannot consider as factors in granting or denying the issuance of the
requested permit the proximity of the location to residences, schools, playgrounds and churches.
However, this tribunal can consider other factors as delineated and set forth in decisional law. In this
case I have considered all other factors, as addressed above, and conclude that the permit should be
granted to the applicant.
15. I conclude that the Petitioner has met his burden of proof in showing that he meets
all of the statutory requirements for holding a retail on premise beer and wine permit at the 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 Hugh F. Bradley, d/b/a Ed's Grocery for an on-premise
beer and wine permit for the grocery store located at 500 Old Manning Road, Sumter County, South
Carolina, is granted, and it is further
ORDERED the Department shall issue the permit to Petitioner upon his compliance with
the requirements of S. C. Code Ann. Section 61-2-160 (Supp. 1996) and upon Petitioner's payment
of the required fees and costs.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
May 2, 1997
1. See 48 C. J. S. Intoxicating Liquors § 96 (1981), which explains that a statutory savings
clause exempting its provisions from "establishments" in existence at the time of the enactment of
the statute is applicable to the premises rather than the specific license for the establishment. |
