ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and
S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1995) for a hearing on the application of Horace W.
Prince. Petitioner seeks an off-premises beer and wine permit (AI 12254) for a convenience store
located outside the city of Loris at 3390 Highway 9 Bypass East, Horry County, South Carolina.
After timely notice to the parties and protestants, a hearing was held at the Administrative
Law Judge Division, Columbia, South Carolina. Several protestants appeared at the hearing.
Pastor Roger Black of the Springfield Baptist Church served as the spokesperson for the
protestants. The protestants did not move to intervene as parties. The issues considered at the
hearing were: (1) petitioner's eligibility to hold a beer and wine permit; (2) the suitability of the
proposed business location; and, (3) the nature of the proposed business activity.
Petitioner's off-premises beer and wine permit is hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the
hearing of this matter, and taking into account the credibility and accuracy of the evidence, I
make the following findings of fact by a preponderance of the evidence:
1. Petitioner seeks an off-premises beer and wine permit for H & L Farmer's
Junction, which is located outside the city of Loris at 3390 Highway 9, Horry County, South
Carolina.
2. Petitioner's application to the South Carolina Department of Revenue
("Department") is made a part of the record by reference.
3. The proposed location is located in a rural area, approximately fifteen (15) miles
from the city of North Myrtle Beach, South Carolina.
4. Highway 9 is a four lane major thoroughfare.
5. No church, school or playground is within close proximity to the proposed
location.
6. Springfield Baptist Church is located approximately two-tenths (2/10) of a mile
from the proposed location.
7. Petitioner operates and manages the proposed location as a convenience store.
The daily hours of operation at the proposed location are from 6:00 a.m. to 8:00 p.m. on Monday
through Saturday and 8:30 a.m. to 6:30 p.m. on Sunday.
8. Petitioner owns the proposed location.
9. The proposed location has been previously licensed to sell beer and wine, under
the operation of another proprietor. The most recent license expired April 30, 1997.
10. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of petitioner Horace W. Prince. The SLED report revealed no criminal violations;
and, petitioner has not engaged in acts or conduct that imply the absence of good moral character.
11. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained his principal residence in the state for at least thirty (30) days prior
to the date of making application for an off-premises beer and wine permit.
12. Petitioner has never held a beer and wine permit or other license for the sale or
consumption of alcoholic beverages.
13. Notice of the application appeared in The Loris Scene, a newspaper of general
circulation in the area of the proposed location, for three (3) consecutive weeks and notice was
posted at the proposed location for fifteen (15) days.
14. The Department did not oppose petitioner's application.
15. Pastor Roger Black testified in opposition to the permit in question. As
justification for denial of an off-premises beer and wine permit to petitioner, the protestant cited:
(1) his aversion to the sale of alcohol and (2) the proximity of the proposed location to the
church. He testified that he had not experienced any disturbances as a result of the operation of
the convenience store.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) establishes the criteria for the issuance
of a beer and wine permit.
3. Although "proper location" is not statutorily defined, broad discretion is vested in
the Administrative Law Judge Division in determining the fitness or suitability of a particular
location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
4. 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. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
5. 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); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276
S.E.2d 308 (1981).
6. In determining whether a proposed location is suitable, it is proper for this tribunal
to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C.
504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984); See also Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
7. The denial of a license or permit to an applicant on the grounds of unsuitability of
location is without evidentiary support when relevant testimony of those opposing the requested
license or permit consists entirely of opinions, generalities, and conclusions not supported by
facts. 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).
8. There has not been a sufficient evidentiary showing that the present location is
unsuitable or that the issuance of an off-premises beer and wine permit would affect the residents'
safety, create traffic problems, or have an adverse impact on the community. The proposed
location and the nature of the business activity are suitable and proper.
9. Petitioner meets all of the criteria enacted by the South Carolina General
Assembly for the issuance of an off-premises beer and wine permit. In making a decision in this
matter, this tribunal is constrained by the record before it and the applicable statutory and case
law. The objections raised by the protestants are mainly rooted in their abhorrence to the
proposed location selling alcoholic beverages. This tribunal acknowledges the protestants'
opposition to the issuance of the permit in question, and also acknowledges their right to hold
such sentiments, however, the basis of this opposition is without merit and is not within the
statutory grounds for denial. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). The
mere aversion to the sale of alcoholic beverages at the proposed location by protestants is not a
sufficient basis on which to deny petitioner's request. The fact that a large number of residents
protest 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. 1994).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department issue an off-premises beer and wine permit to Horace
W. Prince for the location at 3390 Highway 9, Horry County, South Carolina upon the payment
of the required fee(s) and cost(s) by petitioner.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
June 26, 1997
Columbia, South Carolina |
