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. (1986 & Supp. 1997) on the application of David L. Blankenship,
d/b/a Publix Super Markets, Inc., #613, for an off-premises beer and wine permit for the premises
at 655-C Fairview Road in Simpsonville, South Carolina. Respondent South Carolina Department
of Revenue ("DOR") does not oppose Petitioner's application, and this tribunal granted DOR's
motion to be excused from appearing at the hearing. After notice to the parties, a hearing was
conducted on April 21, 1998. Trinity Baptist Church, protestant of record, failed to appear at the
hearing of this matter, thereby waiving its protest.
Based upon the relevant and probative evidence and the applicable law, I find and conclude
that the protestant is in default pursuant to ALJD Rule 23 for failure to appear at the April 21, 1998
hearing, and its protest is hereby dismissed. In addition, I find the proposed location is suitable for
the issuance of an off-premises beer and wine permit. The beer and wine permit is hereby granted.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings of fact:
1. Petitioner, David L. Blankenship, submitted an application for an off-premises beer
and wine permit with DOR on December 10, 1997, for the premises located at 655-C Fairview Road,
Simpsonville, South Carolina.
2. Petitioner is leasing the proposed location from Fairview Market, LLC.
3. The proposed location has been operating as a retail grocery supermarket since
January 28, 1998.
4. The proposed location has not been previously licensed for the sale of beer and wine. 5. Petitioner has had no criminal convictions within the past ten years and he is a person
of good moral character.
6. Petitioner is a legal resident of the United States.
7. Petitioner has resided in and maintained his principal place of abode in South
Carolina for more than thirty days before applying for a permit.
8. Petitioner has never been cited for any violations of the alcoholic beverage control
laws, and he has never had a permit to sell beer and wine suspended or revoked.
9. Petitioner is over twenty-one years of age.
10. Notice of application for the beer and wine permit was published in The Greer
Citizen, a newspaper published in Greer, South Carolina, on November 26, December 3, and
December 10, 1997. Notice was also posted at the proposed location for the time period required.
11. But for the protest filed, DOR would have issued the permit.
12. The proposed location is within the city limits in a primarily commercial area.
13. Trinity Baptist Church is approximately 600 feet from the proposed location.
14. The nearest residence is approximately 650 feet from the proposed location.
15. There are no schools or playgrounds within close proximity to the proposed location.
16. The supermarket will be open every day of the week, from 7:00 a.m. to 10:00 p.m.
17. The location is suitable for the sale of beer and wine for off-premises consumption.
18. All parties were given notice of the date, time and place of the hearing.
19. The protestant, Trinity Baptist Church, received notice of the hearing by certified
mail, return receipt requested, on March 23, 1998.
20. No representative of Trinity Baptist Church appeared at the hearing or communicated
with the Court to request a continuance of the hearing.
21. In its Agency Transmittal, DOR advised this tribunal that Petitioner appears to have
met all statutory requirements, and but for the protest, the Department would have issued the permit.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C.
Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997).
2. The protestant, Trinity Baptist Church, is in default under ALJD Rule 23 for failure
to appear at the April 21, 1998 hearing.
3. Pursuant to ALJD Rule 23, an Administrative Law Judge may dismiss a matter
adversely to a defaulting party.
4. "[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).
5. South Carolina Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the
issuance of a beer and wine permit. Included among the factors for consideration is the suitability
of the location.
6. 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).
7. 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).
8. While proximity of a church or residence to a proposed location by itself may be
adequate grounds for denial of a beer and wine permit, there is no minimum distance requirement.
See S.C. Code Ann. § 61-4-520(7) (Supp. 1997); Byers v. South Carolina ABC Comm'n, 305 S.C.
243, 407 S.E.2d 653 (1991).
9. The proposed location is suitable for the sale of beer and wine.
10. The applicant meets all other statutory requirements for the issuance of an off-premises beer and wine permit.
ORDER
IT IS THEREFORE ORDERED that the protest to Petitioner's application for an off-premises beer and wine permit is dismissed.
IT IS FURTHER ORDERED that Petitioner's application for an off-premises beer and
wine permit for 655-C Fairview Road, Simpsonville, South Carolina, is granted.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 24, 1998
Columbia, South Carolina |
