SC Administrative Law Court Decisions

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. (Supp. 1997) for a hearing on the application of Pearline B. Boswell. Petitioner seeks an on-premises beer and wine permit for a restaurant to be located at 707 Dekalb Street, Camden, South Carolina.

After timely notice to the parties and protestants, a hearing was held on March 24, 1998, at the Administrative Law Judge Division in Columbia, South Carolina. The protestants of record, Patricia M. Bracey, Rosa B. Brown, Lula Harrell Callwood, Bessie M. Doby and Rev. Cassandra Pasley Jackson did not move to intervene as parties. Pursuant to its Motion to Be Excused, the Department was excused from appearing at this hearing, and would have granted the permit but for the protests.

The issues considered at the hearing were: (1) the 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. The application for the on-premises beer and wine permit is hereby granted.

FINDINGS OF FACT

Having carefully considered all testimony 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 on-premises beer and wine permit for a restaurant to be located within the city limits of Camden, South Carolina at 707 Dekalb Street.
2. The proposed location is situated in a commercially zoned area of downtown Camden with several other similar businesses.
3. Jackson Elementary school is located 614 feet down the street and Camden United Methodist Church is located 360 feet across the street from the proposed location. The church's parsonage is next door to the location.
4. Petitioner owns the proposed location, which has never been licensed.
5. Petitioner intends to operate the proposed location as a restaurant which will serve lunch and dinner daily. The proposed hours of operation are from 11:00 a.m. to 2:00 p.m. and 5:00 p.m. to 9:00 p.m.
6. Petitioner presented testimony from members of the community who enthusiastically support her proposed business and application.
7. The protestants all eloquently stated that they morally oppose the sale of beer and wine at the location because of its proximity to the school, church and parsonage. However, all of the protestants stated that other than the proposed sale of beer and wine, they believed that Petitioner's business was good for the community and would support the restaurant when it opens for business.
8. Petitioner is of good moral character. The State Law Enforcement Division completed a criminal background investigation of the Petitioner. The SLED report revealed no criminal violations, and the record before this tribunal does not indicate that Petitioner has engaged in acts or conduct that imply the absence of good moral character.
9. Petitioner is at least twenty-one (21) years of age, a U.S. citizen, and a citizen of the State of South Carolina. Furthermore, Petitioner has maintained her principal residence in the state for at least thirty (30) days prior to the date of making application for an on-premises beer and wine permit.
10. Petitioner has never held a beer and wine permit or alcoholic beverage license.
11. Notice of the application appeared in the Chronicle-Independent, 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 does not oppose Petitioner's application and would have issued the permit but for the protests.

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. section 61-2-260 (Supp. 1997) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this case.
2. S.C. Code Ann. section 61-4-520 (Supp. 1997) 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 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).
4. As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad, but not unbridled discretion. See Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. The determination of the suitability of a location is not necessarily a function of geography alone. It involves an infinite variety of considerations related to the nature and operations 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. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6. There was not a sufficient evidentiary showing that the present location is unsuitable or that the issuance of an on-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 given the commercial nature of the area in which the proposed location is situated. In fact, Petitioner presented considerable, credible testimony that her business will be an asset to the community. Even the protestants acknowledge that except for the sale of alcoholic beverages, they believe that Petitioner's business will be good for the community.
7. 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 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).
8. 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 issuance of a permit or license is protested is not a sufficient reason by itself to deny the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).
9. The location is suitable and proper for the issuance of an on-premises beer and wine permit.
10. The protestants also raised the issue of a statutory prohibition on issuing permits for an establishment within a certain distance of a church, school or playground. However, the statutorily proscribed distances relating to proximity of a location to churches, schools or playgrounds contained in section 61-6-120 are inapplicable in the instant case. Nevertheless, for sake of enhancing the protestants' understanding, this tribunal will briefly explain why this code section does not apply in this matter.

Section 61-6-120 provides: "The department shall not grant or issue any license provided for in this article or Article 7 of this chapter, if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality." S.C. Code Ann. § 61-6-120 (Supp. 1997). The statute specifically states that licenses provided for in "this article or Article 7" are affected. Section 61-6-120 is contained in Article 3, which applies to retailers, wholesalers, and manufacturers. Article 7 governs importation of alcoholic liquors. Therefore, only licenses issued pursuant to Chapter 6, Articles 3 and 7 are affected by section 61-6-120.⁽¹⁾ This does not include section 61-4-520, which governs the issuance of beer and wine permits, and is contained in Chapter 4. Moreover, even if this code section was applicable, the proposed location would still meet the statutory requirements because it is more than three hundred feet from any church, school or playground.

1. 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 protestants are mainly rooted in their moral objection to the proposed location selling alcoholic beverages. This tribunal acknowledges the protestants' opposition to the issuance of the permit in question, as well as their 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 protestants do not constitute a sufficient basis on which to deny Petitioner's request.

ORDER

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

ORDERED that the Department of Revenue shall continue processing Petitioner's application for an on-premises beer and wine permit for 707 Dekalb Street, Camden, South Carolina.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

April 3, 1998

Columbia, South Carolina

1. Although section 61-6-120 states that it applies to licenses issued pursuant to Articles 3 and 7, section 61-6-1820(3) states that before issuing a sale and consumption license license (minibottle) pursuant to Article 5, the department must ensure that section 61-6-120 has been complied with. See S.C. Code Ann. §§ 61-6-120 and 61-6-1820.