ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
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.
EXHIBITS
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.
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 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.
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 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.
ORDER
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.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
July 15, 1997 |