ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 &
Supp. 1997) and S.C. Code Ann. § 61-2-260 (Supp. 1997) upon the filing of an application
(AI#116630) by Petitioner, Thurman McElveen, for an off-premises beer and wine permit for a
location at 1070 Highway 1 South, Lugoff, South Carolina. Upon receipt of written protests to
the application, the South Carolina Department of Revenue (DOR) transmitted the case to the
Administrative Law Judge Division for a hearing. The contested case hearing was conducted on
February 11, 1998, at the Administrative Law Judge Division in Columbia, South Carolina.
Testifying at the hearing in protest of the proposed location was Bill Clark, Rev. Bruce Watford,
and Terry Hinson. Petitioner Thurman McElveen testified in support of the application. Upon
review of the relevant and probative evidence and applicable law, I find the proposed location to
be suitable and hereby grant the application for an off-premises beer and wine permit.
DISCUSSION
The proposed location has operated as a Young's convenience store and has been
permitted to sell beer and wine for off-premises consumption since 1991. A new application for
a beer and wine permit was necessary because a corporate consolidation recently took place in
which approximately 40% of the corporation's ownership was transferred. The transfer of
ownership requires a new application even though the control and management of the location
will remain virtually unaffected by the stock buy out and corporate merger and consolidation.
Opposition to the new application is based primarily upon the proposed location's
proximity to Lugoff Friendship Baptist Church and Protestants' religious opposition to the sale
and consumption of alcohol. The testimony from one clergy member revealed that he opposed
the sale and consumption of alcohol in any form, under any circumstances, and opposed the
licensing of any location. The Court respects the right of an individual or a congregation to
abstain from the purchase and consumption of alcohol and to not be disturbed by those who do
choose to buy and drink beer, wine, or liquor. Standards for judging the suitability of a
proposed location for the sale of beer and wine, however, are not determined by a local
community's religious convictions or moral litmus test. Criteria must be uniform, objective,
constant, and consistent throughout the state. The sale of beer and wine is a lawful enterprise
in South Carolina, as regulated by the State. This Court has neither the authority nor the
inclination to conduct local referenda on whether a particular community is opposed in principle
to the sale of alcoholic beverages. This Court must decide to issue or deny a beer and wine
permit based solely upon the relevant facts and the applicable law.
On the issue of whether the proximity of the proposed location to a church renders the
location unsuitable, all relevant evidence must be examined. Protestants offered no probative
evidence to establish that the location, as operated since 1991, has interfered with or negatively
impacted church activities. Protestants speculated about the impact of beer sales upon the area's
youth, but no substantive facts were established to prove the location unsuitable. Sheriff Steve
McCaskill did testify that his office had received some complaints about underage beer sales at
the proposed location, but the Sheriff did not oppose the permit application in his official
capacity.
The record indicates that the past history of the proposed location has been relatively
problem free. Young's has committed only one ABC violation at the proposed location since
opening in 1991, and current management appears competent and conscientious. The proposed
location is in a commercial area on a major thoroughfare. Young's owns and operates 41 stores,
all of which hold beer and wine permits, and conducts extensive training of employees in the
area of beer sales. The location is suitable to continue to sell beer and wine for off-premises
consumption.
FINDINGS OF FACT
By the preponderance of the evidence, I make the following Findings of Fact:
Petitioner seeks an off-premises beer and wine permit for a location at 1070
Highway 1 South, Lugoff, South Carolina, having filed an application (AI# 116630) with DOR
on July 31, 1997.
Petitioner Thurman R. McElveen is Vice President of Operations of Young's
Food Stores, Inc.
Upon motion granted, DOR was excused from appearance at and participation in
the contested case hearing on the ground that it would have granted the permit but for the
unanswered question of the suitability of the proposed location.
Bill Clark, the Lugoff Friendship Baptist Church, Rev. Bruce Watford, and Terry
Hinson filed written protests to the issuance of the permit.
The proposed location is in an unincorporated area of Kershaw County on a
major traffic thoroughfare.
The area immediately surrounding the proposed location is predominately
commercial in nature and includes commercial and residential properties.
The proposed location is approximately 220 feet from the nearest residence.
The proposed location is approximately 757 feet from Lugoff Friendship Baptist
Church.
The proposed location is approximately 905 feet from Lugoff Church of God.
The proposed location has held an off-premises beer and wine permit as Young's
Food Store since 1991.
Young's filed a new application for a beer and wine permit for the proposed
location and 40 other locations because a corporate consolidation recently took place in which
approximately 40% of the corporation's ownership was transferred.
The control and management of the location will remain virtually unaffected by
the stock buy out and corporate merger and consolidation.
Petitioner is of good moral character.
Petitioner is a fit person to sell beer and wine.
Petitioner has been cited for one violation of the alcoholic beverage control laws
in the last two years.
Petitioner has never had a permit to sell beer and wine revoked.
Petitioner is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
Notice of application appeared in the Chronicle-Independent on August 1, 8 and
15, 1997.
The protestants are mainly opposed to alcohol because of moral and religious
convictions.
No criminal arrests or convictions have taken place on the premises within the
last several years.
The location has adequate parking and adequate control over litter in the area
under management's control.
The location, as operated since 1991, has not interfered with or negatively
impacted church activities at any of the neighboring churches.
The record indicates that the past history of the proposed location has been
relatively problem free.
Young's current management is competent and conscientious, and has adequate
policies and employee training programs to hinder underage beer sales.
Young's owns and operates 41 stores, all of which hold beer and wine permits,
and conducts extensive training of employees in the area of beer sales.
The continued sale of beer and wine at the proposed location will not adversely
affect the community.
The proposed location is suitable to continue to sell beer and wine for off-premises consumption.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
The South Carolina Administrative Law Judge Division has jurisdiction over this
subject matter pursuant to S.C. Code Ann. §§ 61-2-260 (Supp. 1997) and 1-23-310 et seq.
(1986 & Supp. 1997).
"[T]he issuance or granting of a license to sell beer or alcoholic beverages rests
in the sound discretion of the body or official to whom the duty of issuing it is committed."
Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
S.C. Code Ann. § 61-4-520 (Supp. 1996) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
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. Byers v. South Carolina ABC Comm'n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
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).
While proximity of a church, residence, playground, or school to a proposed
location by itself may be adequate grounds for denial of a beer and wine permit, there is no
minimum distance requirement. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407
S.E.2d 653 (1991).
When the relevant testimony of those opposing the permit consists of opinions,
generalities, and conclusions unsupported by fact, the denial of a permit on the ground of
unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181
(1981). Such unsupported allegations form an insufficient basis for denial. 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).
The trier of fact must weigh and pass upon the credibility of evidence presented.
See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d
586 (1992). The trial judge who observes a witness is in the best position to judge the witness's
demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481,
299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker,
285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44
(Ct. App. 1984).
Beer and wine have been sold at the same location for several years, and no
evidence suggests that the proposed location is any less suitable now than it was when
previously licensed. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
The issuance of the permit will not have an adverse impact upon the surrounding
community.
The proposed location is suitable and proper, considering the nature of the
business and the history of the proposed location, for the issuance of a beer and wine permit.
Petitioner meets the statutory qualifications to hold a permit to sell beer and
wine. S.C. Code Ann. § 61-4-520 (Supp. 1997).
Any issues raised or presented in the proceedings or hearing of this case not
specifically addressed in this Order are deemed denied. ALJD Rule 29(B).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the off-premises beer and wine permit sought by
Petitioner is granted.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 2, 1998
Columbia, South Carolina |