ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§ 61-2-90 and 61-2-260 (Supp. 1998) and S. C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1998)
for a contested case hearing. The Petitioner seeks an off-premise beer and wine permit for Stop A Minit
8. The Department made a Motion to be Excused which was granted by my Order dated May 20, 1999.
A hearing was held on July 9, 1999, at the Administrative Law Judge Division.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Petitioner, I make the
following Findings of Fact by a preponderance of evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, Protestant, and South Carolina Department of Revenue.
2. The Petitioner intends to construct and operate a Stop A Minit convenience store at 3001
Abbeville Highway, Anderson, South Carolina. The partnership seeks an off-premise permit for that
location.
3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 1998) concerning the
residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a
permit or license revoked within the last two years and notice of the application was lawfully posted
both at the location and in a newspaper of general circulation.
4. The Petitioner has no criminal record and is of sufficient moral character to receive a
beer and wine permit.
5. There was no evidence that the proposed location is unreasonably close to any church,
school or playground.
6. When built, the Stop A Minit will be a convenience store. The Petitioner's proposed
location is in a mixed commercial and residential area which is becoming increasingly commercial.
Additionally, there are several locations in the immediate area which already hold beer and wine
permits.
7. The Petitioner, Mr. Mizzell, currently holds four off-premise beer and wine permits. He
has never had any administrative violations imposed against his four permits.
8. The proposed location is suitable for an off-premise beer and wine permit.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1998) grants jurisdiction to the Administrative Law
Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1998) grants the Administrative Law Judge Division
the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-4-520 (Supp. 1998) sets forth the requirements for the issuance of
an off-premise beer and wine permit.
4. Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 281 S.E. 2d 118 (1981).
5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness
or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using
broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316
S.E. 2d 705 (Ct. App. 1984).
6. The determination of suitability of location is not necessarily a function solely of
geography. It involves an infinite variety of considerations related to the nature and operations of the
proposed business and its impact upon the community within which it is to be located. Kearney v.
Allen, 287 S.C. 324, 338 S.E. 2d 335 (1985).
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 a Protestant objects to the issuance of
a permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating
Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. In considering the suitability of a location, it is relevant to consider the previous history
of the location and to determine whether the testimony in opposition to the granting of a permit is
based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v.
Pratt, 258 S.C. 504, 189 S.E. 2d 301 (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E. 2d 801
(1973).
9. The Petitioner meets the statutory requirements for holding an off-premise beer and wine
permit at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the off-premise beer and wine permit application of the Petitioner for Stop A
Minit be granted upon the Petitioner's payment of the required fees and costs.
AND IT IS SO ORDERED.
_______________________________
Ralph King Anderson, III
Administrative Law Judge
July 15, 1999
Columbia, South Carolina |
