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 #117911) by Petitioner, James A. Cantrell, for an on-premises beer and wine permit for a
location at Route 1, Box 173-J, McCormick, 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 8, 1998, at the Administrative Law Judge Division in Columbia, South Carolina.
Testifying at the hearing in protest of the proposed location were Rev. E. A. Sims, Cherry
Brown, and Michael Brown. Petitioner and Guy Randleson testified in support of the
application. Upon review of the relevant and probative evidence and applicable law, I find the
proposed location to be suitable and hereby grant the application for an on-premises beer and
wine permit.
DISCUSSION
The proposed location operates as a general store serving campers and community
members. Petitioner seeks to sell beer and wine for on and off-premises consumption from the
store. Opposition to the application is based primarily upon moral and religious convictions;
concerns regarding the effect of alcohol upon children; the presence of children in the area; and
the proximity of the location to a community center, a church, and residence
The Court respects the right of an individual, congregation, or community to abstain
from the purchase and consumption of alcohol and to be undisturbed 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.
On the issue of whether the proximity of the proposed location to a church or community
center renders the location unsuitable, all relevant evidence must be examined. Protestants
offered no probative evidence to establish that the location, as operated over the last ten years,
has interfered with or negatively impacted church or civic activities at the church or community
center. Protestants speculated about the impact of beer sales upon the area's youth, but no
substantive facts were established to prove the location unsuitable. No evidence was presented
which indicated that it was likely that Petitioner would attempt to sell beer or wine to underage
individuals. Generalities and opinions regarding the unfortunate consequences of youth who
indulge in beer or wine are not probative of the suitability or unsuitability of a particular
location to sell beer and wine. The area surrounding the proposed location is relatively sparsely
populated and the impact of beer and wine sales upon the youth of the community is likely to be
minimal.
For the foregoing reasons, the location is suitable for issuance of the permit sought.
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 Route 1,
Box 173-J, McCormick, South Carolina, having filed with DOR an application (AI #117911).
Written protests were filed in opposition to the issuance of the permit sought, and
this case was transmitted to the ALJD for hearing.
The protestants are mainly opposed to the sale of beer and wine at the proposed
location because of moral and religious convictions, the effect of alcohol on children, the
presence of children in in the area, and because of the proximity of the location to a community
center, a church, and residences.
Upon motion granted, Respondent 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.
The proposed location is in an unincorporated area of McCormick, off of
Highway 81.
Petitioner is the owner and operator of the Willington Camp Ground, of which
the store is a part.
The Willington Camp Ground is located on a five-acre tract, has approximately
42 campsites and a small fishing pond, and caters primarily to hunters and fishermen.
The area immediately surrounding the proposed location is predominately rural
in nature but includes commercial and residential properties.
Petitioner has operated the camp ground for approximately ten years.
Petitioner has operated the proposed location, the Camp Ground Store, for
approximately three years.
The hours of operation of the proposed location are 8:00 a.m. - 8:00 p.m., seven
days a week.
Petitioner lives on the camp ground property, on Highway 81, approximately 50
feet in front of the proposed location.
Two residences are located within 885 feet of the proposed location.
Approximately four minor children live in the vicinity of the proposed location.
Holy Rock Reformed Episcopal Church is located on Highway 81, approximately
1,384 feet from the proposed location.
Mims Community Center is located on the property adjacent to the camp ground,
approximately 573 feet away from the proposed location by the most direct route of vehicular
travel.
Mims Community Center is separated by a line of trees from the camp ground.
Mims Community Center is used for social, educational, and spiritual activities,
including wedding receptions, after-school programs for children, and adult education programs.
Alcohol is not served at Mims Community Center.
The proposed location is approximately 220 feet from the nearest residence.
The proposed location is approximately 757 feet from Holy Rock Reformed
Episcopal Church.
Petitioner has previously held beer and wine permits for other locations in the
same general area as 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 the application appeared in the McCormick Messenger on October 2, 9,
and 16, 1997.
No criminal arrests or convictions have taken place on the premises within the
last several years.
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.
The proposed location is suitable and proper for the issuance of a beer and wine
permit, considering the nature of the business and the history of the proposed location,.
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 |
