ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and
S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1996) for a hearing on the application of Thomas M.
Clancy. Petitioner seeks an off-premises beer and wine permit for a convenience store located at
8391 Charlotte Highway, Lancaster County, South Carolina.
After timely notice to the parties and protestants, a hearing was held on December 22,
1997, at the Administrative Law Judge Division in Columbia, South Carolina. Two protestants
of record appeared at the hearing. The protestants did not move to intervene as parties. The
issues considered at the hearing were: (1) the applicant's eligibility to hold a beer and wine
permit; (2) the suitability of the business location; and, (3) the nature of the proposed business
activity. The off-premises beer and wine permit for 8391 Charlotte Highway, Lancaster County,
South Carolina is hereby denied.
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. The applicant seeks an off-premises beer and wine permit for Indianland Amoco, a
convenience store located at 8391 Charlotte Highway, Lancaster County, South Carolina.
2. The South Carolina Department of Revenue's file was made a part of the record
by reference with the consent of the applicant and the protestants.
3. The convenience store was opened on September 27, 1997, and is situated in a
rural area directly off of Charlotte Highway.
4. The applicant's convenience store is located within 282 feet of Indianland High
School, which is on the same side of Charlotte Highway. Further, Indianland Elementary School
is on the opposite side of Charlotte Highway, 462 feet directly in front of the convenience store.
Indianland Park is located directly behind the elementary school.
5. The convenience store is owned by Carolina Food Stores, LLC, of which the
applicant is a principal.
6. The applicant is of good moral character.
7. The applicant operates the proposed location daily from 7:00 a.m. to 11:00 p.m.
8. The applicant 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.
9. The applicant has not had a beer and wine permit or alcoholic beverage license
revoked within two (2) years of the date of his application.
10. Notice of the application appeared in The Lancaster News, a newspaper of
general circulation in the area of the proposed location, at least once a week for three (3)
consecutive weeks and notice was posted at the proposed location for fifteen (15) days.
11. The protestants welcome the applicant's business establishment, but oppose the
off premises beer and wine permit because of the store's proximity to schools. Protestants also
contend that children frequent the applicant's convenience store.
DISCUSSION
South Carolina Code Ann. § 61-4-520 (6 ) (Supp. 1996) authorizes the trier of fact, within
its discretion, to determine whether a proposed location is proper for the issuance of a beer and
wine permit. Section 61-4-520(7) (Supp. 1996) provides that the trier of fact may consider ". . .
among other factors, as indications of unsuitable location, the proximity to residences, schools,
playgrounds and churches." (emphasis added).
The South Carolina Supreme Court rejected a holding by the Court of Appeals that
proximity of a school to a proposed location is a sufficient basis to deny a permit only when
supported by substantial evidence that the sale of beer and wine at the location is likely to be
detrimental to the public interest because of that proximity. Moore v. South Carolina ABC
Comm'n, 308 S.C. 167, 417 S.E.2d 557 (1992) (overruling Moore v. South Carolina ABC
Comm'n, 304 S.C. 356, 404 S.E.2d 714 (Ct. App. 1991)). In Moore, the Supreme Court restated
its holding in a case decided just months earlier, Byers v. South Carolina ABC Comm'n, 305 S.C.
243, 407 S.E.2d 653 (1991): ". . . [P]roximity of a location to a church, school or residence is a
proper ground by itself, on which the [trier of fact] may find the location to be unsuitable and
deny a permit for the sale of beer or wine at that location." Moore v. South Carolina ABC
Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992) (citing Byers v. South Carolina ABC Comm'n,
305 S.C. 243, 407 S.E.2d 653 (1991)).
In the instant case, the schools are approximately less than one tenth (.1) of a mile [282
feet] and [462 feet], respectively, from the convenience store. Based on proximity alone, the
location is unsuitable and improper. Further, children frequent the business, and the underlying
policy of the statute is that the milieu of an establishment selling alcoholic beverages is
considered inimical to the best interests and welfare of minors.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 61-2-260 (Supp. 1996) authorizes the South Carolina
Administrative Law Judge Division to hear this case pursuant to Chapter 23 of Title I of the 1976
Code, as amended.
2. S.C. Code Ann. § 61-4-520 (Supp. 1996) 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, as the trier of fact, 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. "The proximity of a location to a church, school or residence is a proper ground by
itself, on which the [trier of fact] may find the location to be unsuitable and deny a permit for the
sale of beer or wine at that location." Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407
S.E.2d 653 (1991); Moore v. South Carolina ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555
(1992).
ORDER
Based upon the Findings of Fact, Discussion, and Conclusions of Law, it is hereby:
ORDERED that the off-premises beer and wine permit for a convenience store located at
8391 Charlotte Highway, Lancaster County is denied.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 292211-1667
January 27, 1998
Columbia, South Carolina |
