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. (Supp. 1997) for a hearing on the application of Helen
Duncan. Petitioner seeks an on-premises beer and wine permit for a restaurant located at 2760
Highway 21, Fort Mill, South Carolina.
After timely notice to the parties and protestants, a hearing was held on April 16, 1998, at
the Administrative Law Judge Division in Columbia, South Carolina. The protestants of record,
Rev. Wilson and Captain Taylor, 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:
Petitioner seeks an on-premises beer and wine permit for a restaurant located outside
the city limits of Fort Mill, South Carolina at 2760 Highway 21, York County.
The proposed location is situated in a rural area six miles from Fort Mill.
Petitioner leases the building that houses the restaurant from Lucy Ransom. This
location was previously licensed with a beer and wine permit as M&K Enterprises, Inc. from May
7 through October 17, 1997.
Petitioner's restaurant serves lunch and dinner from 11:00 a.m. to 11:00 p.m.,
Monday through Friday, and 11:00 a.m. to 12:00 a.m. on Saturday.
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.
Petitioner is at least twenty-one 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 days prior to the date of making application for an on-premises beer and wine permit.
Petitioner has not had a beer and wine permit or alcoholic beverage license revoked
within two years of the date of her application.
Notice of the application appeared in the Fort Mill Times, a newspaper of general
circulation in the area of the proposed location, once a week for three consecutive weeks, and notice
was posted at the proposed location for fifteen days.
Rev. Wilson morally opposes the sale of beer and wine. He also believes that the
location is too close to the church and will create a safety hazard. Captain Taylor did not have any
specific objections to the licensing of the proposed location. However, it is the policy of the York
County Sheriff's Department to offer assistance when any member of the community protests an
alcohol permit or license.
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:
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.
S.C. Code Ann. section 61-4-520 (Supp. 1997) establishes the criteria for the
issuance of a beer and wine permit.
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).
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).
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).
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 residents'
safety, create traffic problems, or 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 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).
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).
Petitioner meets all of the statutory criteria enacted by the South Carolina General
Assembly for the issuance of an on-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 Rev. Wilson are mainly rooted in his moral objection to the
proposed location selling alcoholic beverages. This tribunal acknowledges his opposition to the
issuance of the permit, 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 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 2760 Highway 21, Fort Mill, South
Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
May 1, 1998
Columbia, South Carolina |
