ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 &
Supp. 1997) and S.C. Code Ann. § 61-2-260 (Supp. 1997) upon the filing of an application
(AI#118339) by Petitioner for an on-premises beer and wine permit for a location at 1900
Highway 187, Anderson, South Carolina. Upon receipt of written protests to the application,
the South Carolina Department of Revenue ("DOR") transmitted the case to the Administrative
Law Judge Division for a hearing. The contested case hearing was conducted on April 6, 1998,
at the Anderson County Courthouse in Anderson, South Carolina. Testifying at the hearing in
protest of the proposed location were Rev. Bruce Evans, Harold Bates, Wayne Latham, and
Clyde Mullinax. Petitioner testified in support of the application. Upon review of the relevant
and probative evidence and applicable law, I find the proposed location is suitable and grant the
application for an on-premises beer and wine permit.
DISCUSSION
Opposition to the new application is based primarily upon the proposed location's
proximity to several churches and residences and the moral or religious opposition to alcohol by
area clergy, congregations, and residents. 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.
FINDINGS OF FACT
By the preponderance of the evidence, I make the following Findings of Fact:
Petitioner seeks an on-premises beer and wine permit for a location at 1900
Highway 187, Anderson, South Carolina, having filed an application (AI #118339) with DOR.
Petitioner Don R. Taylor is the owner and manager of the proposed location.
Upon motion granted, DOR was excused from appearance at and participation in
the contested case hearing on the ground that it would have granted the permit but for the
unanswered question of the suitability of the proposed location.
Protestant Harold W. Bates is not related by blood or marriage to the undersigned
administrative law judge.
The proposed location is in an unincorporated area of Anderson County at the
intersection of Highway 187 and Dobbins Bridge Road.
The area immediately surrounding the proposed location is predominately rural
but includes commercial and residential properties.
The proposed location is approximately one mile from Andersonville Baptist
Church.
The proposed location is approximately 1.6 miles from Providence Baptist
Church.
The proposed location is approximately 2.1 miles from Gospel Missionary
Chapel.
The proposed location is a small establishment which provides hot dogs and
snacks and has a maximum capacity of 30 persons.
Petitioner has operated the proposed location since September, 1997.
The hours of operation of the proposed location are 10:00 a.m. - 10:00 p.m.,
Monday - Saturday.
Petitioner stipulates that he will close on Wednesday nights and on Sundays.
Directly across the intersection from the proposed location is a licensed location,
the Villager convenience store, which sells beer and wine for off-premises consumption.
Another licensed location is approximately .3 miles from the proposed location.
Petitioner is of good moral character.
Petitioner is a fit person to sell beer and wine.
Petitioner has never been cited for a violation of the alcoholic beverage control
laws and has never had a permit to sell beer and wine revoked.
Petitioner is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
Notice of application appeared in the News-Chronicle on October 1, 8 and 15,
1997.
The protestants are mainly opposed to alcohol because of moral and religious
convictions.
No criminal arrests or convictions have taken place on the premises within the
last several years.
The location has adequate parking and adequate control over litter in the area
under management's control.
The proposed location has not interfered with or negatively impacted church
activities at any of the neighboring churches.
The record indicates that the past history of the proposed location has been
relatively problem free.
The sale of beer and wine at the proposed location will not adversely affect the
community.
The proposed location is suitable to sell beer and wine for on-premises
consumption.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
The South Carolina Administrative Law Judge Division has jurisdiction over this
subject matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and §§ 1-23-310 et seq.
(1986 & 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) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
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. Byers v. South Carolina ABC Comm'n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
The determination of suitability of a location is not necessarily a function solely
of geography. 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).
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).
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 his testimony. See McAlister v. Patterson, 278 S.C. 481,
299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker,
285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44
(Ct. App. 1984).
The issuance of the permit will not have an adverse impact upon the surrounding
community.
Petitioner meets the statutory qualifications to hold a permit to sell beer and
wine. S.C. Code Ann. § 61-4-520 (Supp. 1997).
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).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the on-premises beer and wine permit sought by
Petitioner is granted.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 28, 1998
Columbia, South Carolina |