SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division on the application of Thomas A. Wilkerson, d/b/a Mountain Top Lounge, for an on-premises beer and wine permit for a business located at Route 2, Box 6630, Patrick, South Carolina. After notice to the parties, a hearing was conducted on January 26, 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).

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 Petitioner, Thomas A. Wilkerson, applied for an on-premises beer and wine permit on August 11, 1997, for the premises located at Route 2, Box 6630, Patrick, South Carolina.

Petitioner is the sole proprietor of the proposed location.

The Petitioner is over the age of twenty-one.

The Petitioner has legally resided in the United States and has held a principal place of abode in South Carolina for more than 30 days prior to the date of application.

The Petitioner has had no criminal convictions in the past 10 years and is a person of good moral character.

Petitioner has never been cited for any violations of the alcoholic beverage control laws and has never had a permit to sell beer and wine revoked.

The proposed location will operate as a lounge, open from 6:00 p.m. to 3:00 a.m., Monday through Friday and 6:00 p.m. to 12:00 a.m. Saturday.

The Mountain Top Lounge is located in an unincorporated area of Chesterfield County.

The area immediately surrounding the proposed location is rural in nature and includes residential properties. The closest residence is 365 feet from the proposed location.

Audrey Ritter, pastor of the Bethel United Methodist Church, protested the application on the basis of the possibility that the proposed location would attract traffic problems and altercations near to the church and the nearby residence.

The Bethel United Methodist Church is 265 feet from the proposed location.

No facts were offered to support the allegations and concerns of the church.

The proposed location has been previously licensed under various different owners since 1987. No evidence was presented concerning any problems at the location.

Based upon the history of beer and wine sales at the proposed location, the location is suitable to sell beer and wine for on-premises consumption.

Notice of application appeared in The Pageland Progressive-Journal on September 30, October 7, and October 14, 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 applicant is suitable for issuance of an on-premises beer and wine permit.

Based upon the Findings of Fact, I conclude as a matter of law the following:

The Administrative Law Judge Division has 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 the South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (Rev. 1986 & Supp. 1997), and the 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).

"[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. 1997), which sets forth the requirements for the issuance of a beer and wine permit, provides in part:

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.

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).

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).

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 applicant meets 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.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED, that the application of Thomas A. Wilkerson, d/b/a Mountain Top Lounge, for an on-premises beer and wine permit for a business located at Route 2, Box 6630, Patrick, South Carolina is GRANTED upon the payment of the appropriate fees.

AND IT IS SO ORDERED.

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ALISON RENEE LEE

Administrative Law Judge

February 4, 1998

Columbia, South Carolina