South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

Roland K. Drake, d/b/a M&R Foods vs. SCDOR, et al

South Carolina Department of Revenue

Roland K. Drake, d/b/a M&R Foods

South Carolina Department of Revenue and George Estes (Intervenor)

James H. Harrison, Esquire, for Petitioner

Carol McMahan, Esquire, for Respondent,

South Carolina Department of Revenue

James Klauber, Esquire, for Respondent,

George Estes




This matter comes before me pursuant to S.C. Code Ann. § 1-23-310, et seq. (Supp. 1996) and S.C. Code Ann. § 61-2-260 (Supp. 1996) for a hearing pursuant to the application of Roland K. Drake, d/b/a M&R Foods ("Applicant" or "Petitioner"), for an off-premises beer and wine permit (AI #111220) for the premises located at Route 1, Highway 252, Ware Shoals, Laurens County, South Carolina ("location").

A hearing was held on May 19, 1997 at the Administrative Law Judge Division office, Columbia, South Carolina. The issues considered were: (1) whether the notice published in the Laurens County Advertiser on October 2, 9, and 16, 1996 met the requirements for notice set forth in S.C. Code Ann. § 61-4-520 (Supp. 1996), (2) whether the applicant is a suitable person to be licensed to sell beer and wine, and (3) whether the proposed location is suitable for the sale of beer and wine for off-premises consumption.

The application was protested by George Estes of Ware Shoals, South Carolina, who appeared at the hearing and testified in opposition to the issuance of the permit. When a permit for the sale of beer and wine or a sale and consumption license is protested, a hearing is authorized on the matter, with jurisdiction to conduct the hearing vested in the Administrative Law Judge Division. At the start of the hearing Mr. Estes moved to intervene as a party; without objection, the motion was granted.

The application request is granted.


Certified copies of documents forwarded to the Administrative Law Judge Division from the Department are made a part of the record. Various other exhibits including photographs of the proposed location were entered into the record at the hearing by the Applicant and Intervenor.


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 the 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 protestant.

3. Petitioner seeks an off-premises beer and wine permit for the premises located at Route 1, Highway 252, Ware Shoals, South Carolina, in Laurens County, having filed an application requesting same with the South Carolina Department of Revenue ("DOR"), on October 7, 1996.

4. Notice of the application appeared on October 2, 9, and 16, 1996 in the Laurens County Advertiser, the newspaper designated by DOR as the appropriate newspaper for the publication of the notice in Laurens County. The address listed for the proposed location was "Hwy. 25 Junction 252, Ware Shoals, SC 29692".

5. The area at the intersection or junction of U.S. Highway 25 and S.C. Highway 252 is rural in nature. There are several residences but no commercial businesses in the immediate vicinity. The proposed location is approximately one half (1/2) mile in distance from this intersection.

6. The proposed location fronts on S.C. Highway 252 and is bordered on its northwest boundary by Hill Estates Road. The area at the proposed location is mixed residential and commercial and is rural in nature. South Carolina Highway 252 is a heavily traveled highway between Ware Shoals and Laurens.

7. There are no churches, schools or playgrounds in close proximity to the proposed location.

8. God's Store Front, a church-affiliated thrift shop, is situated directly across S. C. Highway 252 from the proposed location. The church with which this shop is affiliated is approximately seven-tenths (.07) of a mile away. The shop is open in the mornings and closes each day around 4:00 to 5:00 p.m.

9. The residence of George Estes, the Intervenor and Protestant, is located on S. C. Highway approximately one half (1/2) mile from the proposed location.

10. Notice of the application was posted at the proposed location from October 22, 1996 through November 6, 1996 by SLED agent R. M. Godfrey.

11. The notice posted at the property, together with the notice published in the newspaper were sufficient to inform the general public as well as the Intervenor that the application request had been made to DOR for the permit.

12. Both the petitioner and his partner Mark Mizzell are over twenty-one years of age, are citizens of the State of South Carolina and have maintained their principal residences in South Carolina for more than thirty (30) days prior to the date the application was filed.

13. Neither the Petitioner nor Mark Mizzell have had a permit/license revoked within the last two years.

14. The petitioner and Mark Mizzell are both of good moral character.

15. The petitioner and Mark Mizzell own and operate as a partnership a convenience store, known as M & R Foods, at the proposed location.

16. The hours of operation of the store are from 7:00 a.m. to 10:00 p.m. Monday through Wednesday and from 7:00 a.m. to 12:00 midnight Thursday through Saturday. The business is closed on Sunday.

17. There are parking spaces available for approximately 35 vehicles at the convenience store.

18. There is exterior lighting on the front and sides of the proposed location.

19. The petitioner and Mark Mizzell operate several other businesses in the general area which are or have been licensed to sell beer and wine. None of their other locations have been cited for any violation of the state alcoholic beverages statutes or regulations nor have any complaints been made about their operation.

20. Rayford's Stop and Shop, a business which is permitted by DOR for and sells beer and wine for on-premises consumption at its location, is situated diagonally across S. C. Highway 252 from the proposed location.

21. Police protection for the area where the convenience store is located is provided by the Laurens County Sheriff's Office which is approximately 20 miles away from the location.

22. The Intervenor and Mr. Truman C. Henderson, expressed concern that the issuance of the permit would exacerbate crime in the general area, noting that arrests for DUI, auto theft, armed robbery and vandalism had been made recently. They are concerned with the safety and welfare of the citizens in the local community and the effect of persons drinking alcoholic beverages and driving while under the influence. Further, they are concerned that individuals may purchase beer or wine in the store and then drink it in the parking lot prior to leaving the location. Mr. Estes has spoken with others in the community about this permit application. Mr. Estes protested the beer and wine application request of the store across the highway from the proposed location.

23. Mr. Estes stated that he knew no one in the community who was prejudiced by the alleged inadequacy of the newspaper notice or the notice posted at the location. He also did not know of any person who would have protested the application but was confused about the permit or its location.

24. There is a network of individuals in the community who look out for notices in the newspaper where beer and wine permits are being requested, particularly in businesses where video poker machines are to be located. The Intervenor encouraged others who are a part of this network to come to the hearing and has had numerous conversations with the Laurens County Sheriff's Office about beer and wine permits.

23. The application request is not protested by the Laurens County Sheriff's Department, the agency responsible for providing law enforcement to the proposed location and the surrounding community.


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 has jurisdiction in this matter.

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 as follows:

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 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 sole protestant did not present any credible evidence of hazardous or congested traffic conditions or safety concerns for the citizens of the community. The evidence provided at the hearing does not convince the Court that the grant of this permit would greatly impact property values in the immediate vicinity of the location or increase stress in terms of the safety and well-being of the citizens who live in the neighborhood. Further, there was no evidence that the Laurens County Sheriff's Department could not provide law enforcement protection to the location.

9. 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.

10. I conclude that the Petitioner has met his burden of proof in showing that he meets all of the statutory requirements for holding an off-premises beer and wine permit at the location. I further conclude that the proposed location is a proper one for granting the permit.


Based upon the above Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the application of Roland K. Drake, d/b/a M&R Foods for an off-premises beer and wine permit at the location found at Route 1, Highway 252, Ware Shoals, Laurens County, South Carolina, is granted, and

IT IS FURTHER ORDERED that the South Carolina Department of Revenue shall issue the permit upon Petitioner's payment of the required fees and costs.



Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

July 15, 1997

Brown Bldg.






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