ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Ann. Regs. 7-90 (1976) upon the request of ("Petitioner") for an off-premises beer & wine
permit. The proposed location is known as Beaver Dam Trading Post, and is located at: 2820 West Old Camden Road;
Hartsville, South Carolina.
The South Carolina Department of Revenue ("Department") filed a Motion to be Excused, stating that but for the protest of
this application, the Department would have issued the permit. The Department's Motion was granted on July 8, 1999.
A hearing was held before the undersigned at the Division, at 1205 Pendleton Street, Suite 224, Columbia, South Carolina.
Notice of the time, date, location, and nature of the hearing was timely sent to all parties, as well as the Protestants.
FINDINGS OF FACT
Having observed testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I
make the following Findings of Fact by a preponderance of the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the parties as well as the Protestants in a
timely manner.
2. The Division has personal and subject matter jurisdiction in this matter.
3. The Petitioner seeks an off-premises beer and wine permit for the business establishment known as Beaver Dam Trading
Post, and is located at: 2820 West Old Camden Road; Hartsville, South Carolina.
4. Beaver Dam Trading Post is a convenience store that sells miscellaneous grocery items, gasoline, and has an on-site food
preparation area.
5. The Petitioner currently operates another such location with a beer and wine permit.
6. Nine (9) individuals filed protests to the issuance of the off-premises beer and wine permit. Three Protestants were
present at the hearing: Reverend Nelson Thomas Rhodes, Mr. Orie Johnson, and Mr. James Atkinson. Only Reverend
Rhodes, pastor of Gum Branch Baptist Church, offered sworn testimony at the hearing.
7. Reverend Rhodes testified that his concerns were relative to an increase in the flow of traffic, distance between the
proposed location and the Gum Branch Baptist Church, and the number of establishments in the area that would be licensed
to sell alcoholic beverages.
8. The Petitioner is of good moral character in that he is, and has served as a Lee County Magistrate for eighteen (18) years.
9. The intended hours of operation are 6:00 a.m. - 10:00 p.m., Monday thru Saturday; and 8 a.m. - 6 p.m. on Sunday.
10. There has been no incidents of criminal activity around the proposed location, while operated by this Petitioner.
11. The Department filed a Motion to be Excused from attending the hearing, which was subsequently granted.
12. In its Motion, the Department indicated that the Petitioner met all statutory requirements relative to issuance of an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Ann. Regs. 7-90 (1976).
13. By virtue of granting the Department's Motion to be Excused from attending the hearing, the Division adopts the
Department's finding that Petitioner met the statutory requirements relative to issuance of an off-premises beer and wine
permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Ann. Regs. 7-90 (1976).
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1998) grants jurisdicition to the South Carolina Administrative Law Judge Division to
hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-6-1825 (Supp. 1998) grants to the South Carolina Administrative Law Judge Division the powers,
duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and
wine.
3. S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Ann. Regs. 7-90 (1976) sets forth the requirements for issuance of
beer and wine permits.
4. The determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite
variety of considerations related to the nature and operation of a 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).
5. Any evidence adverse to a location may by considered. In evaluating the issuance of a beer and wine permit, the proximity
of the location to a church, school or residence is a proper ground by itself on which the location may be found to be
unsuitable and the permit denied. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further,
the judge can consider whether there have been any law enforcement problems in the general area. Palmer v. S.C. ABC
Comm'n 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the judge can consider the proximity or the absence of other
licensed locations in the immediate vicinity and the existence of students and small children in the area.
6. Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the statutory
criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not 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).
7. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of
a license 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, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the testimony of the
Protestants concerning a possible detriment to their community is conjectural and without any specific factual support.
There is no evidence of law enforcement problems in the general area of the proposed location, nor is there evidence of an
increase in the flow of traffic or recent alcohol-related accidents in this area. Again, all the general statutory requirements
have been met.
8. The major complaints of the Protestants are based on conjecture and conclusions which this court concludes are without
basis. The court does not see any evidence that law enforcement could not provide sufficient protection at the location and
to residents in the general vicinity; there is no evidence of any safety problems. If the business at this location is operated
properly, there will be no negative impact upon the community.
9. Permits and licenses issued by the State for sale of liquor, beer and wine are not rights or property, but are rather
privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and
conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized,
for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See
Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
10. Standards for judging the suitability of a proposed location for the sale of beer, wine or liquor are not determined by a
local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State.
The sale of beer, wine or liquor is a lawful enterprise in South Carolina, regulated by the State.
11. I conclude that the Petitioner's burden of proof has been met by virtue of meeting all of the statutory requirements for
holding an off-premises beer and wine permit at the proposed location. I further conclude that the proposed location is
proper for granting the permit.ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the South Carolina Department of Revenue shall issue an off-premises beer and wine permit to Alston W.
Woodham, d/b/a Beaver Dam Trading Post, located at: 2820 West Old Camden Road; Hartsville, South Carolina, upon
payment of the appropriate fees.
AND IT IS SO ORDERED.
___________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
September 3, 1999
Columbia, South Carolina. |
