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 David B.
Carter. Petitioner seeks an on-premises beer and wine permit for a restaurant located at 4795
South Church Street, Extension #7, Roebuck, Spartanburg County, South Carolina.
Protestants Marc Kitchens, M.D. Putnam, Jim Stephens, and Reverend Tim Williams
were granted leave to intervene as formal parties of record pursuant to this tribunal's Order filed
July 24, 1997. After timely notice to the parties and the Protestant-Intervenors, a hearing was
held at the Administrative Law Judge Division in Columbia, South Carolina. The issues
considered at the hearing were: (1) the 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.
The application for the on-premises beer and wine permit is hereby granted. FINDINGS OF FACT
Having carefully considered all testimony 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 on-premises beer and wine permit for a restaurant located
outside the city of Roebuck, Spartanburg County, South Carolina at 4795 South Church Street,
Extension #7.
2. Petitioner's application to the South Carolina Department of Revenue
("Department") was made a part of the record by reference without objection.
3. The proposed location is situated in a strip mall with several other businesses in a
commercial area off of U.S. Highway 221, a four-lane major thoroughfare.
4. No church, school, or playground is within close proximity to the proposed
location. Roebuck Elementary School is approximately three-tenths of a mile or 1580 feet away
from the proposed location on the opposite side of U.S. Highway 221.
5. The proposed location was previously licensed for on-premises consumption of
beer and wine from December 1992 to July 1996.
6. Petitioner intends to operate the proposed location as a restaurant which will serve
deli sandwiches. The proposed hours of operation are from 10:00 a.m. to 12:00 a.m., Monday
through Saturday.
7. Petitioner leases the proposed location from Spencer/Hines Properties, Inc.
8. No concrete evidence was presented to show that the issuance of an on-premises
beer and wine permit, as requested by the applicant, would have an adverse impact on the
community.
9. The applicant is of good moral character. The State Law Enforcement Division
("SLED") completed a criminal background investigation of the Petitioner. The SLED report
revealed no criminal violations; and, Petitioner has not engaged in acts or conduct that imply the
absence of good moral character.
10. Petitioner is at least twenty-one (21) years of age, a U.S. citizen, and a citizen of
the State of South Carolina. Furthermore, Petitioner has maintained his principal residence in the
state for at least thirty (30) days prior to the date of making application for an on-premises beer
and wine permit.
11. Notice of the application appeared in the Spartanburg Herald-Journal, 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.
12. The Department does not oppose Petitioner's application and would have issued
Petitioner a beer and wine permit had the Intervenors not protested its issuance.
13. Intervenors cited the following as grounds for denial of Petitioner's application:
(1) patrons of Petitioner's establishment will drive under the influence of alcohol after
patronizing this establishment, which is situated in the vicinity of the school, and (2) patrons of
Petitioner's establishment will operate vehicles while under the influence of alcohol in the
parking lot of the strip mall, which is already congested.
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, authorize 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. The preponderance of the evidence "is evidence which is of the greater weight or
more convincing than the evidence which is offered in opposition to it . . . ." Black's Law
Dictionary 1182 (6th ed. 1990). "The preponderance of the evidence means such evidence as,
when considered and compared with that opposed to it, has more convincing force and produces
in the mind the belief that what is sought to be proved is more likely true than not true." Sanders,
Neese, and Nichols, South Carolina Trial Handbook, § 9:5 Quantum of Evidence in Civil Cases
(1994), (citing Frazier v. Frazier, 228 S.C. 149, 89 S.E.2d 225 (1955)).
4. Evidence of allegations must be sufficient and probative of the matter to be
proven. See Coleman v. Palmetto State Life Ins. Co., 241 S.C. 384, 128 S.E.2d 699 (1962).
5. The test for the sufficiency of a proffer of evidence to warrant a finding is as
follows:
A . . . finding must be based on the evidence and . . . on the facts
proved . . . . [A]lthough difficulty of proof does not prevent the
assertion of a legal right, the . . . finding cannot rest on surmise nor
can it rest on mere speculation. Likewise, . . . a . . . finding cannot
rest on conjecture. . . guesswork . . . or rest on supposition,
assumption, imagination, suspicion, arbitrary action, whim, caprice,
illogical and unsound reasoning, innuendo, percentage, likelihood,
mere theory, or conclusions that are in conflict with undisputed fact
. . . The evidence on which the . . . finding is based must be
competent, legal evidence received in the course of the trial, credible,
and of probative force, and must support every material fact. The
decision should be against the party having the burden of proof where
there is no evidence, or the evidence as to the material issue is
insufficient. . . . (emphasis added).
32 C.J.S. Evidence § 1042 (1964); see also S.C. Code Ann. § 1-23-320(i) (Supp. 1995).
6. Evidence has probative value "if it tends to prove an issue." Black's Law
Dictionary 1203 (6th ed. 1990).
7. 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. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
8. 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. See Ronald F. Byers v. S.C. ABC Comm'n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
9. The determination of the suitability of a location is not necessarily a function
solely of geography. It involves an infinite variety of considerations related to the nature and
operations 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).
10. There was not a sufficient evidentiary showing that the present location is
unsuitable or that the issuance of an on-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 given the commercial
nature of the area in which the proposed location is situated.
11. The denial of a license or permit to an applicant on the ground 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. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973).
12. Without sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a
permit or license is protested is not a sufficient reason by itself to deny the application. See 48
Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119
(1981).
13. The location is suitable and proper for the issuance of an on-premises beer and
wine permit.
14. The applicant satisfies all of the statutory requirements for holding an on-premises
beer and wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that an on-premises beer and wine permit is granted to David B. Carter for
the location at 4795 South Church Street, Extension #7, Roebuck, Spartanburg County, South
Carolina.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premises
beer and wine permit upon the payment of the required fee(s) and cost(s) by the applicant.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
August 7, 1997
Columbia, South Carolina |
