ORDERS:
ORDER AND DECISION
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 on the application of Sandra E. Spivey.
Petitioner seeks an off-premises beer and wine permit for a grocery store located at 303 Brighteyes
Drive, outside the city of Westminster, in Oconee County, South Carolina.
After timely notice to the parties and protestants, a hearing was held on May 27, 1999, at the
Administrative Law Judge Division in Columbia, South Carolina. The protestants of record, Sheriff
Singleton and Horace Hare, did not move to intervene as parties. The Department 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 off-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:
1. Petitioner seeks an off-premises beer and wine permit for a grocery store located at
303 Brighteyes Drive, Oconee County.
2. The proposed location is situated in a rural area with twenty residences in the
immediate proximity of the premises. Petitioner owns all of these residences.
3. Petitioner will operate the grocery store daily during the hours from 6:00 a.m. to 8:00
p.m.
4. Petitioner is of good moral character. The State Law Enforcement Division
completed a criminal background investigation of 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.
5. 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 off-premises beer and wine permit.
6. Petitioner has not had a beer and wine permit or alcoholic beverage license revoked
within two years of the date of her application.
7. Notices of the application appeared in the Keowee Courier, a newspaper of general
circulation in the area of the proposed location, once a week for three consecutive weeks. Notice
was also posted at the proposed location for fifteen days.
8. Sheriff Singleton opposed the issuance of a beer and wine permit to Petitioner on the
grounds that the location is unsuitable because of the remoteness of the location and the difficulty
in policing the area. Sheriff Singleton also cited the crookedness and undulating terrain on
Brighteyes Drive as posing a safety hazard, especially if drivers are under the influence of alcohol.
Finally, he cited the residential nature of the community surrounding the grocery store as further
evidence of its unsuitability. The grounds in opposition to the permit stated by protestant Horace
Hare were virtually identical to those of Sheriff Singleton. When offering testimony, both
protestants were under the impression that Petitioner was seeking an on-premises beer and wine
permit. However, after being informed that Petitioner was seeking an off-premises permit, neither
protestant withdrew his protest.
9. 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:
1. S.C. Code Ann. section 61-2-260 (Supp. 1998) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. section 61-4-520 (Supp. 1998) establishes the criteria for the issuance
of a beer and wine permit.
3. 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).
4. 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 (Court. App. 1984).
5. 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).
6. There was not a sufficient evidentiary showing that the present location is unsuitable
or that the issuance of an off-premises beer and wine permit would affect nearby residents' safety,
increase crime problems, or have an adverse impact on the community.
7. 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).
8. Petitioner meets all of the statutory criteria enacted by the South Carolina General
Assembly for the issuance of an off-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.
In that regard, there was no concrete evidence presented by the protestants to support their
contention that the issuance of a permit to Petitioner for the sale of beer and wine for off-premises
consumption would be detrimental to the community. The protestants' contention is based on
speculation and such speculation cannot serve as a basis for the denial of the permit.
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 off-premises beer and wine permit for 303 Brighteyes Drive, Oconee County,
South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
June 4, 1999
Columbia, South Carolina |