SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1996) on the application of Gene E. Evans, d/b/a Evans Tire & Wrecker Service for an off-premises beer and wine permit for location at 3149 West Hwy 160, Fort Mill, York County, South Carolina. The motion of Macedonia Baptist Church to intervene as a protestor in this matter was granted on September 24, 1997. After notice to the parties, a hearing was conducted on September 25, 1997. Any issues raised in the proceedings or hearing of this matter that are not addressed in this Order are deemed denied. ALJD Rule 29B.

FINDINGS OF FACT

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. The applicant, Gene E. Evans, is a thirty-year old lifelong resident of South Carolina and is a legal resident of the United States.

2. He has never held a beer and wine permit or a license to sell alcoholic liquors and no license or permit has ever been revoked or suspended.

3. York County Sheriff 's Department reveals that he has no criminal record. Mr. Evans admitted to pleading guilty to an offense relating to driving under the influence a number of years ago. He is a person of good moral character.

4. The proposed location is Evans Tire & Wrecker Service, located at 3149 West Hwy 160, Fort Mill, South Carolina. It is in a somewhat rural area of York County outside of the municipal limits. The applicant has operated the location since he inherited it in 1989. His father previously operated the business from 1979 until his death.

5. A wooden fence approximately 10 feet high completely surrounds the location. The back portion of the property and the side portions do not provide access to the public.

6. The business is a tire and wrecker garage-type business. Mr. Evans plans to convert one of the service bay areas to a convenience store. He also plans to obtain gas pumps for the business.

7. The location currently has five Class III video game machines which Evans will continue to operate.

8. The business is open from 7:00 a.m. until 10:00 p.m., Monday through Saturday. It is closed on Sunday.

9. The closest residence is inhabited by the applicant's mother. There are no schools or playgrounds in the vicinity. The closest church is located 230 feet from the proposed location following the route of ordinary pedestrian travel. It is the Macedonia Baptist Church, the intervenor in this matter.

10. The church is located behind the proposed location on Zoar Road. The wooden fence surrounding the proposed location separates the church property from the proposed location's property. From the fence to the actual church structure is approximately 16 feet.

11. Approximately four-tenths of a mile from the proposed location is a Crown Station which has a beer and wine permit for off-premises consumption. There is also a shopping center that has a Food Lion, an ABC retail liquor store, and a restaurant which are licensed locations.

12. There is also a BP Service Station which sells beer and wine for off-premises consumption and a restaurant, McHale's Food & Spirits, that is also a licensed location. Both the BP Station and the Restaurant are located seven-tenths of a mile from the proposed location.

13. The sole protestor in this matter is the Macedonia Baptist Church. Although the Sheriff's Department issued a protest, their policy is to protest any application which is also protested by members of the public. The Sheriff's Department provides support for the protestors. At the hearing, the Sheriff's Deputy did not have any additional information to oppose or to support the application of Mr. Evans.

14. The Church is protesting the application because it is morally opposed to the sale and consumption of alcoholic beverages. It is also concerned for the safety of its members. People have parked cars on the church property and consumed beer or liquor. In addition, the Church was once burglarized. There have been no other incidents and the Sheriff's Department did not provide any evidence to support the Church's allegations. The primary concern relating to safety is the possible increase of loitering and trespassing from persons under the influence of alcoholic beverages.

15. The Church is used frequently throughout the week, in addition to Sunday services. On Saturday night, meetings for Alcoholics Anonymous are held at the Church. The Church does not want the sale of beer and wine in such close proximity to it, fearing that such sales will have an adverse effect on the community and on the Church's activities.

16. Although the Pastor of the Church, Rev. Player, denied the allegations, there are reports in the department's investigative file from SLED that Rev. Player indicated that he would not protest an off-premise beer and wine permit. The testimony of Evans and other documentation in the department file support these allegations.

17. Notice of the application was published in the Fort Mill Times and was posted at the proposed location for the time period required by law.

CONCLUSIONS OF LAW

Based upon the Findings of Fact, I conclude as a matter of law, the following:

1. The Administrative Law Judge is vested with contested case jurisdiction pursuant to the S.C. Revenue Procedures Act (S.C. Code Ann. §§ 12-60-10, et seq. (Supp. 1996)), the Administrative Procedures Act (S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1996)) and S.C. Code Ann. § 61-2-260 (Supp. 1996).

2. S.C. Code Ann. §§ 61-2-90 and 61-4-520 (Supp. 1996) provide the statutory requirements for the issuance of beer and wine permits. Section 61-4-520(6) provides that no permit authorizing the sale of beer or wine may be issued unless "[t]he location of the proposed place of business of the applicant is in the opinion of the department a proper one." "The department may consider, among other factors, as indication of unsuitable location, the proximity to residences, schools, playgrounds, and churches. . . ." S.C. Code Ann. § 61-4-520(7) (Supp. 1996).

3. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact 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); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); and Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972);

4. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. 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 the proposed location is not necessarily a function solely of geography. It may involve 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 unsuitable and a permit denied. Byers v. S. C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court 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).

6. In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is rather supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the testimony of the protestor consisted of claimed detriment to the community not supported by the evidence. No evidence was proffered showing the grant of this permit would greatly impact, or justify the concerns for, the safety and well-being of the parishioners at the church. Although there has been a burglary at the church, there was no evidence that the proposed change in the business activity at Evans Tire and Wrecker Service would contribute to this concern.

7. The issuance of the permit would not have an adverse impact upon the surrounding community.

8. Petitioner meets all statutory requirements for the issuance of an off-premises beer and wine permit.

9. The location is suitable for the issuance of an off-premises beer and wine permit, given the nature of the area and the existence of other permitted locations operating in the area.

10. S.C. Code Ann. § 61-4-540 (Supp. 1996) states that upon a determination that an applicant, (1) meets the requisite qualifications and conditions, (2) is a fit person and, (3) the proposed place of business is a proper one, the department must issue the permit after payment of the fee required by law.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the application of Gene E. Evans, d/b/a Evans Tire & Wrecker Service for an off-premises beer and wine permit for a business located at 3149 W. Hwy 160, Fort Mill, York County, South Carolina is GRANTED. The Department shall issue an off-premises beer and wine permit upon the payment of the appropriate fees.

AND IT IS SO ORDERED.

___________________________

ALISON RENEE LEE

Administrative Law Judge

October 6, 1997

Columbia, South Carolina