ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C.
Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997) on the application of Walter B. Carmichael,
d/b/a Store 06, for a seven-day, off-premises beer and wine permit for the premises at 1520 Highway
17 North, Mount Pleasant, South Carolina. Upon receipt of a written protest to the application,
Respondent South Carolina Department of Revenue ("DOR") transmitted the case to the
Administrative Law Judge Division for a hearing. DOR does not oppose Petitioner's application,
and this tribunal granted DOR's motion to be excused from appearing at the hearing. After notice
to the parties, a hearing was conducted on March 30, 1998, at the Administrative Law Judge
Division in Columbia, South Carolina. Prior to the hearing, New Hope Missionary Baptist Church,
protestant of record ("New Hope"), moved to intervene as a party in the case.
At the commencement of the hearing, the Court granted New Hope's motion for intervention.
Testifying in protest of the proposed location, on behalf of New Hope, was Alfred Congers, Elaine
Major and Michael Allen. Petitioner Walter Carmichael testified in support of the application.
Based
upon the relevant and probative evidence and the applicable law, I find the proposed location to be
suitable and hereby grant the application for a seven-day, off-premises beer and wine permit.
DISCUSSION
Opposition to Petitioner's application is based primarily upon the proposed location's
proximity to New Hope Missionary Baptist Church and its members' religious opposition to the sale
and consumption of alcohol. 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.
Regarding 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 is unsuitable. No kindergarten or playground is located at the
church. Further, the proposed location is in a commercial area in the heart of Mount Pleasant, at the
intersection of Highway 526 and Highway 17 North, next to the exit ramp of Highway 526.
Although New Hope has cited traffic flow as a concern, a deceleration lane has been built, at
Petitioner's expense, to mitigate any traffic problems.
Moreover, the only signage advertising beer or wine will be on the inside of the proposed
location. Additionally, Petitioner holds three other beer and wine permits, and conducts extensive
training of employees in the area of beer sales. The cash registers at the proposed location will have
a feature prompting employees to check for the birth date of purchasers, to avoid the sale of alcohol
to underage individuals. The Mount Pleasant Police Department is located approximately two to
three miles away. Under all of these circumstances, I find the location to be suitable for the sale of
beer and wine for off-premises consumption.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings of fact:
1. Petitioner, Walter B. Carmichael, submitted an application for a seven-day, off-premises beer and wine permit with DOR on August 14, 1997, for the premises located at 1520
Highway 17 North, Mount Pleasant, South Carolina.
2. The proposed location will operate as a convenience store.
3. The proposed location has not been previously licensed for the sale of beer and wine.
4. The building at the proposed location has not yet been built. The land is owned by
Petitioner's father, E.R. Carmichael.
5. Petitioner has had no criminal convictions within the past ten years, and he is a person
of good moral character.
6. Petitioner is a legal resident of the United States.
7. Petitioner has resided in and maintained his principal place of abode in South
Carolina for more than thirty days before applying for a permit.
8. Petitioner has never been cited for any violations of the alcoholic beverage control
laws, and he has never had a permit to sell beer and wine suspended or revoked.
9. Petitioner is over twenty-one years of age.
10. Notice of application for the beer and wine permit was published in The Post and
Courier, a newspaper published in Charleston, South Carolina, on July 25, August 1, and August 8,
1997. Notice was also posted at the proposed location for the time period required.
11. But for the protest filed, DOR would have issued the permit.
12. The proposed location is within the city limits in a commercial area, at the
intersection of Highway 526 and Highway 17 North, next to the exit ramp of Highway 526.
13. A deceleration lane has been built in front of the proposed location, at Petitioner's
expense, to mitigate any traffic problems.
14. New Hope Missionary Baptist Church is approximately 106 feet across the highway
from the proposed location.
15. There are no residences, schools or playgrounds within close proximity to the
proposed location.
16. There are eight other businesses in the surrounding area licensed to sell beer, wine,
and/or liquor on Highway 17.
17. The only signage advertising beer or wine will be on the inside of the proposed
location.
18. Petitioner holds three other beer and wine permits, and conducts extensive training
of employees in the area of beer sales.
19. The cash registers at the proposed location will have a feature prompting employees
to check for the birth date of purchasers, to avoid the sale of alcohol to underage individuals.
20. The Mount Pleasant Police Department is located approximately two to three miles
from the proposed location.
21. New Hope's opposition to Petitioner's application is based primarily on its religious
opposition to the sale and consumption of alcohol.
22. The sale of beer and wine at the proposed location will not adversely affect the
surrounding community.
23. The location is suitable for the sale of beer and wine for off-premises consumption.
24. All parties were given notice of the date, time and place of the hearing.
25. In its Agency Transmittal, DOR advised this tribunal that Petitioner appears to have
met all statutory requirements, and but for the protest, the Department would have issued the permit.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C.
Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997).
2. "[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).
3. South Carolina Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the
issuance of a beer and wine permit. Included among the factors for consideration is the suitability
of the location.
4. 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).
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).
6. While proximity of a church to a proposed location by itself may be adequate grounds
for denial of a beer and wine permit, there is no minimum distance requirement. See S.C. Code Ann.
§ 61-4-520(7) (Supp. 1997); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653
(1991). While S.C. Code Ann. § 61-6-120(A) (Supp. 1997) provides that a business licensed to sell
liquor must be over 300 feet from a church, school or playground within a municipality, there is no
similar statute applicable to the sale of beer and wine.
7. 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 their testimony. See, e.g., McAlister v. Patterson, 278 S.C. 481,
299 S.E.2d 322 (1982).
8. 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. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Such
unsupported allegations form an insufficient basis for denial of a permit. Id.
9. The existence of another business in close proximity which is licensed to sell beer and
wine is evidence of suitability of the proposed location. Taylor v. Lewis, 198 S.E.2d at 802 (1973).
10. The issuance of the permit will not have an adverse impact upon the surrounding
community.
11. The proposed location is suitable for the sale of beer and wine.
12. The applicant meets all other statutory requirements for the issuance of a seven day,
off-premises beer and wine permit.
13. Any motions or issues raised in the proceedings, but not addressed in this Order are
deemed denied pursuant to ALJD Rule 29(B).
ORDER
IT IS THEREFORE ORDERED that Petitioner's application for a seven-day, off-premises
beer and wine permit for 1520 Highway 17 North, Mount Pleasant, South Carolina, is granted.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May 13, 1998
Columbia, South Carolina |
