ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division on the application of Martin
D. Frailey and Adrian Lee Castorina, d/b/a Acme Pizza, for an on-premises beer and wine permit
for the business located at 2558 West Main Street, Rock Hill, South Carolina. After notice to the
parties, a hearing was conducted on January 20, 1998. Based upon the evidence presented, the
application for the beer and wine permit is GRANTED.
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).
FINDINGS OF FACT
I make the following Findings of Fact, taking into account the burden on the parties to
establish their respective cases by a preponderance of the evidence and taking into consideration
the credibility of the witnesses:
The Petitioners, Martin D. Frailey and Adrian Lee Castorina, d/b/a Acme Pizza,
applied as a partnership for an on-premises beer and wine permit (AI# 116433) on September 2,
1997, for the premises located at 2558 West Main Street, Rock Hill, South Carolina. Martin David
Frailey is the applicant for the permit on behalf of the partnership.
The Petitioners are over the age of twenty-one.
The Petitioners have legally resided in the United States and have held a principal
place of abode in South Carolina for more than 30 days prior to the date of application.
The Petitioners are persons of good moral character.
The proposed location operates as a restaurant specializing in dine-in and carry-out
pizza and calzones. The restaurant has seating for thirty-two patrons.
The petitioners seek a beer and wine permit in response to requests from their
customers desirous of beer and wine to accompany their meals. Beer and wine will only be sold
in connection with the service of food.
The location's operating hours are 11:30 a.m. to 12:00 a.m., Monday through
Thursday; 11:30 a.m. to 2:30 a.m., Friday and Saturday; and, 12:00 p.m. to 10:00 p.m. Sunday.
Acme Pizza is located within the city limits of Rock Hill.
The proposed location is situated in a shopping center directly across West Main
Street from Northwestern High School. Two other licensed locations are located near the proposed
location. A grocery store in the shopping center with an off-premises beer and wine permit is
located approximately 152 feet away, and a gas station with an off-premises beer and wine permit
is located approximately 657 feet from the proposed location.
Dr. William Gummerson protested the application on behalf of Northwestern High
School on the basis of the proposed location's proximity to the school.
The proposed location is approximately 514 feet from Rock Hill High School.
Since the restaurant has been open, Acme Pizza has not been a problem for the high
school. Dr. Gummerson is protesting as a preemptive measure and does not have any evidence to
demonstrate that the proposed location will present a problem in the future.
The proposed location is approximately 0.2 miles from Rawlinson Road Middle
School.
A residence is located approximately 712 feet from the proposed location.
Notice of application appeared in The Herald once a week for three consecutive
weeks, beginning with the issue dated July 25, 1997. Notice was also posted at the proposed
location for the time period required.
But for the protest filed, the Department of Revenue would have issued the permit.
The applicants are suitable to hold an on-premises beer and wine permit.
The location is suitable for issuance of an on-premises beer and wine permit.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
The Administrative Law Judge Division holds subject-matter jurisdiction over
contested cases concerning the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260
(Supp. 1997). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (Rev.
1986 & Supp. 1997), and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp.
1997).
"A person engaging in the business of selling beer, ale, porter, wine, or a beverage
which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply
to the department for a permit to sell these beverages." S.C. Code Ann. § 61-4-500 (Supp. 1997).
S.C. Code Ann. § 61-4-520 (Supp. 1997), which sets forth the requirements for the
issuance of a beer and wine permit, provides as follows:
No permit authorizing the sale of beer or wine may be issued unless. . . .
(6) The location of the proposed place of business of the applicant is in the opinion
of the department a proper one.
(7) The department may consider, among other factors, as indications of unsuitable
location, the proximity to residences, schools, playgrounds and churches.
The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer
v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
As 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. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
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); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
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).
There has been no evidentiary showing that the present location is unsuitable or that
the issuance of an on-premises beer and wine permit would have an adverse impact on the
community.
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 support by facts.
Taylor v. Lewis, supra; Smith v. Pratt, supra.
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 permit was protested does
not serve as a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating
Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).
The applicants meet the statutory requirements for the issuance of an on-premises
beer and wine permit.
The location is suitable for issuance of an on-premises beer and wine permit.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the application of Diana Martin D. Frailey and Adrian Lee Castorina, d/b/a
Acme Pizza, for an on-premises beer and wine permit for the business located at 2558 West Main
Street, Rock Hill, is hereby GRANTED.
The Department is directed to issue an on-premises beer and wine permit upon the payment
of the appropriate fees.
AND IT IS SO ORDERED.
__________________________________
ALISON RENEE LEE
Administrative Law Judge
January 27, 1998
Columbia, South Carolina |
