South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Karen Donahue, d/b/a K & T Grocery & Grill vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Karen Donahue, d/b/a K & T Grocery & Grill

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
99-ALJ-17-0244-CC

APPEARANCES:
James H. Harrison
Attorney for Petitioner

Geoffrey R. Bonham
Attorney for Respondent

Pastor Glenn King
Nicey Grove Baptist Church
Protestant
 

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 Karen Donahue. Petitioner seeks an off-premises beer and wine permit for a convenience store and grill located at Route 1, Box 122, Kirksey Road, Jefferson, South Carolina.

After timely notice to the parties and the protestant, a hearing was held on July 28, 1999, at the Administrative Law Judge Division in Columbia, South Carolina. The protestant of record, Pastor Glenn King, did not move to intervene as a party.

The issues considered at the hearing were: (1) 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 convenience store and grill located at Route 1, Box 122, Kirksey Road, Jefferson, South Carolina.

2. Petitioner owns the building that houses the convenience store.

3. This location has never been licensed with a beer and wine permit.

4. Petitioner intends to operate the business Monday through Saturday from 6:00 a.m. to 9:00 p.m.

5. 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.

6. 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.

7. Petitioner has not had a beer and wine permit or alcoholic beverage license revoked within two years of the date of her application.

8. Notice of the application appeared in the Pageland Progressive-Journal, a newspaper of general circulation in the area of the proposed location, once a week for three consecutive weeks, and notice was posted at the proposed location for fifteen days.

9. The proposed location is approximately 599 feet away from Nicey Grove Baptist Church.

10. Pastor King morally opposes the sale of beer and wine. Additionally, he feels that the location is too close to the church.

11. The Department does not oppose Petitioner's application and would have issued the permit but for the protest.

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. Included in the criteria is the requirement that the proposed location be a suitable one.

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 (Ct. 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 proposed location is unsuitable or that the issuance of an off-premises beer and wine permit would create problems, or have an adverse impact on the community.

7. The denial of a license or permit to an applicant on the ground 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).

8. 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).

9. 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. Although Pastor King expressed concerns that the proposed location is too close to the church to be permitted to sell beer and wine, and that the sale of beer and wine might create safety problems, he admitted that his objections were mainly rooted in his moral objection to the sale of alcoholic beverages. Pastor King conceded, however, that as the business is currently operated, it is an asset to the community. Further, he stated that even if the proposed location were a mile away from the church, because of his moral beliefs, his objections would still be the same. This tribunal acknowledges Pastor King's opposition to the issuance of the permit, 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. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). Therefore, the arguments proffered by the protestant do not constitute a sufficient basis on which to deny Petitioner's request.



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 Route 1, Box 122, Kirksey Road, Jefferson, South Carolina.

AND IT IS SO ORDERED.



______________________________

JOHN D. GEATHERS

Administrative Law Judge

August 5, 1999

Columbia, South Carolina


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