SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 1998) for a hearing pursuant to the application of Aurelia Elder. Petitioner seeks an off-premises beer and wine permit for a convenience store located at 11650 North Fraser Street, in the Plantersville community of Georgetown, South Carolina.

After timely notice to the parties and the protestants, a hearing was conducted at the Administrative Law Judge Division in Columbia, South Carolina. The application for an off-premises beer and wine permit is hereby granted.

Having carefully considered all testimony, exhibits, 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. The South Carolina Department of Revenue's file was made a part of the record by reference with the consent of the parties.

1. Petitioner seeks an off-premises beer and wine permit for a convenience store located within the county of Georgetown, South Carolina at 11650 North Fraser Street in the Plantersville community.
2. Fraser Street is a major thorough-fare between the cities of Georgetown and Conway, South Carolina. Fraser Street runs along the outer edge of Plantersville and does not run through the heart of the community.
3. Petitioner owns the land and building where the convenience store is located. In fact, Petitioner lives in a different part of the building which houses the convenience store.
4. Petitioner is involved in the management or day-to-day operation of the business, and is currently open for business Monday through Saturday from 7:00 a.m. until 10:00 p.m.
5. No church, school, or playground is within close proximity to the proposed location.
6. The State Law Enforcement Division ("SLED") completed a criminal background investigation of Petitioner Aurelia Elder. The SLED report did not reveal any criminal violations that would disqualify Petitioner from being issued a permit. Further, there is nothing in the record before this tribunal to indicate that Petitioner has engaged in acts that imply the absence of good moral character.
7. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South Carolina, and has maintained her principal residence in the State for at least thirty (30) days prior to the date of making application for an off-premises beer and wine permit.
8. Petitioner has never held a beer and wine permit or other license for the sale or consumption of alcoholic beverages.
9. Notice of the application appeared in The Georgetown Times, 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.
10. Protestant John A. Ford objects to the issuance of the beer and wine permit. He cited potential noise and traffic congestion as reasons for his objection. However, he concedes that he has not experienced any of the aforementioned problems as a result of the current operation of the business. Mr. Ford also believes that the sale of beer and wine at the proposed location will have a detrimental effect on the community.
11. The Department does not oppose the issuance of the permit. But for the question as to suitability of the location, the Department would have issued the permit.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. S.C. Code Ann. § 61-2-260 (Supp. 1998) authorizes the South Carolina Administrative Law Judge Division to hear this case.
2. S.C. Code Ann. § 61-4-520 (Supp. 1998) establishes the criteria for the issuance of a beer and wine permit.
3. 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. Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
4. There has been no evidentiary showing that the present location is unsuitable or that the issuance of an off-premises beer and wine permit would have an adverse impact on the surrounding community. While the protestant cited opposition to the issuance of the permit, his opposition was grounded in speculation. Petitioner has operated the business for nearly a year without incident. The denial of a license or permit to an applicant on the grounds 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).

This tribunal acknowledges the protestant's concerns regarding the sale of alcoholic beverages in the community, 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.

5. Petitioner satisfies all of the statutory requirements for holding an off-premises beer and wine permit.

ORDER

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

ORDERED that Department shall continue to process the application of Aurelia Elder for an off-premises beer and wine permit for the convenience store located at 11650 North Fraser Street, Georgetown, South Carolina.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

April 23, 1999

Columbia, South Carolina