SC Administrative Law Court Decisions

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 Donald F. Spenny. Petitioner seeks an off-premises beer and wine permit for a convenience store located at 2851 Highway 101 North, Greer, South Carolina.

After timely notice to the parties and protestant, a hearing was held on January 14, 1998, at the Administrative Law Judge Division, Columbia, South Carolina. Reverend Don Elders, protestant of record, did not move to intervene as a party. Pursuant to its Motion to Be Excused, the Department was excused from appearing at the hearing and would have granted the permit but for the protest. The issues considered at the hearing were: (1) Petitioner's eligibility to hold a beer and wine permit; (2) the suitability of the proposed business location; and, (3) the nature of the proposed business activity. Petitioner's off-premises beer and wine permit is hereby granted.

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. Petitioner seeks an off-premises beer and wine permit for Grand Foodstuff, which is located at 2851 Highway 101 North, Greer, South Carolina.
2. Petitioner's application to the South Carolina Department of Revenue is made a part of the record by reference.
3. No church, school or playground is within close proximity to the proposed location.
4. Livingway Community Church is located approximately 285 feet from the proposed location. The church began leasing the facility in which it is housed in March of 1997.
5. The proposed location has been licensed to sell beer and wine under the operation of other proprietors for the last ten years. The most recent license expired on November 30, 1997.
6. Petitioner operates and manages the proposed location as a convenience store. The daily hours of operation at the proposed location are from 5:30 a.m. to 12:30 a.m. on Monday through Friday, 5:30 a.m. to 12:00 a.m on Saturday, and 5:30 a.m. to 10:00 p.m. on Sunday.
7. Petitioner leases the proposed location from Billy Hindman.
8. The State Law Enforcement Division completed a criminal background investigation of Petitioner Donald F. Spenny. The SLED report did not reveal any criminal violations. Further, there is nothing in the record before this tribunal to indicate that Petitioner has engaged in acts or conduct that imply the absence of good moral character.
9. Petitioner 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.
10. Petitioner has never had a beer and wine permit or other license for the sale or consumption of alcoholic beverages suspended or revoked.
11. Notice of the application appeared in The Greer Citizen, a newspaper of general circulation in the area of the proposed location, once a week for three (3) consecutive weeks and notice was posted at the proposed location for fifteen (15) days.
12. The Department did not oppose Petitioner's application.
13. Reverend Don Elders testified in opposition to the permit in question. As justification for denial of an off-premises beer and wine permit to Petitioner, the protestant cited: (1) his aversion to the sale of alcohol and (2) the proximity of the proposed location to the church.

CONCLUSIONS OF LAW AND DISCUSSION

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) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this case.
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 an applicant's proposed business location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981); Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
4. Determination of suitability of a location is not based on geography alone. 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); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
5. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
6. The denial of a license or permit to an applicant on the grounds 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 supported by facts. 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).
7. There has not been a sufficient evidentiary showing that the present location is unsuitable or that the issuance of an off-premises beer and wine permit would affect the residents' safety, create traffic problems, or have an adverse impact on the community. The proposed location and the nature of the business activity are suitable and proper.
8. Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an off-premises beer and wine permit. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. The objections raised by the protestant are mainly rooted in his abhorrence to the proposed location selling alcoholic beverages. This tribunal acknowledges the protestant's opposition to the issuance of the permit in question, as well as his right to hold such sentiments. However, mere aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of a permit request. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). Therefore, the arguments proffered by the protestant do not constitute a sufficient basis on which to deny Petitioner's request.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department shall continue processing the application of Donald F. Spenny for an off-premises beer and wine permit for 2851 Highway 101 North, Greer, South Carolina, and shall issue such permit upon Petitioner's payment of the required fee(s) and cost(s).

AND IT IS SO ORDERED.

__________________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

January 23, 1998

Columbia, South Carolina