South Carolina
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Barbara S. Miller, d/b/a Highway 6 Groceries vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Barbara S. Miller, d/b/a Highway 6 Groceries

Respondents:
South Carolina Department of Revenue

DOCKET NUMBER:
97-ALJ-17-0098-CC

APPEARANCES:
Barbara S. Miller, Petitioner (pro se)

Kelly Walling (pro se) Protestant

ORDERS:

FINAL ORDER AND DECISION

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. 1995) upon the filing of an application (AI#111766) by Petitioner, Barbara S. Miller, for an on-premises and off-premises beer and wine permit for a location at Highway 6 Groceries at 1729 South Lake Drive, Lexington, South Carolina. Upon receipt of written protests to the application, the South Carolina Department of Revenue ("DOR") transmitted the case to the Administrative Law Judge Division for a hearing. The contested case hearing was conducted on April 29, 1997, at the Administrative Law Judge Division in Columbia. Testifying at the hearing in protest of the proposed location was Kelly Walling. Petitioner and Petitioner's sister, Paula Stevenson Lott, testified in support of the application. Upon review of the relevant and probative evidence and applicable law, the application for an on-premises and off-premises beer and wine permit is granted.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

Petitioner seeks an on-premises and off-premises beer and wine permit for a location at Highway 6 Groceries at 1729 South Lake Drive, Lexington, South Carolina, having filed an application [AI 111766] with DOR on November 12, 1996.

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 but for the unanswered question of the suitability of the proposed location.
The DOR file was incorporated into the record at the hearing.
The proposed location is located in an unincorporated area of Lexington County.
The area immediately surrounding the proposed location is rural in nature and includes commercial and residential properties.
The proposed location has operated as a convenience store, grocery and restaurant for nineteen years, with the Petitioner's family having continuous ownership and management.
Petitioner is the sole proprietor of the proposed location.
The proposed location seats fifteen patrons.
The proposed location sells groceries, gasoline, cigarettes and grilled food.
Beer and wine sold for on-premises consumption do not constitute a substantial part of the proposed location's business.
The proposed location has been licensed to sell beer and wine for off-premises consumption for approximately nineteen years.
The proposed location has been licensed to sell beer and wine for on-premises consumption for approximately five years.
The proposed location has never been the subject of any violation of the state's alcoholic beverage control laws.
Petitioner has never had suspended or revoked any type of alcoholic beverage license or permit.
The proposed location fronts on South Lake Drive and is located between an automobile dealership and an automotive service center.
The nearest residence is 328 feet from the proposed location across South Lake Drive.
Saxe Gotha Elementary School is located 0.7 miles from the proposed location.
The Red Bank Superette holds an off-premises permit and is the nearest permitted location, 1.6 miles from the proposed location.
No church is located within one mile of the proposed location.
Mostly 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.
Lexington County law enforcement was not represented at the hearing.
Based upon the history of beer and wine sales at the proposed location and the continued operation of the establishment by Petitioner's family, the location is suitable to sell beer and wine for on-premises consumption.
Petitioner is of good moral character.
Petitioner is a fit person to sell beer and wine.
Petitioner has never been cited for any violations of the alcoholic beverage control laws.
Petitioner has never had a permit to sell beer and wine revoked.
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.
Notice of application appeared in the Lexington County Chronicle on October 30, 1996, November 6, 1996, and November 13, 1996.

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 jurisdiction over this subject matter pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1995) and 1-23-310, et seq. (1986 & Supp. 1996).
"[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed." Palmer v. South Carolina Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.

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. Byers v. South Carolina Alcoholic Beverage Control Comm'n, 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).
While proximity of a church, residence, playground, or school to a proposed location may, in and of itself, be adequate grounds for denial of a beer and wine permit, there is no minimum distance requirement. William Byers v. S.C. ABC Commission, 305 S.C. 243, 407 S.E.2d 653 (1991).
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). When the relevant testimony of those opposing the permit consists entirely of opinions, generalities, and conclusions not supported by fact, the denial of the permit on the ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).

Beer and wine have been sold at the same location for decades, and there is no evidence that the proposed location is any less suitable now than it was when previously licensed. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
The issuance of the permit will not have an adverse impact upon the surrounding community.

The proposed location is suitable and proper, in light of the nature of the business and the past history of the proposed location, for the issuance of a beer and wine permit.