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. Code Ann. Regs. 7-90 (1976) upon the request of the Petitioner for an off-premises beer &
wine permit. The proposed location is known as Shelton's, located at 105 West Lady Street, Swansea, South Carolina
29160.
The South Carolina Department of Revenue ("Department") filed a Motion to be Excused, stating that the Department
would have granted the permit but for the protest of the application. The Department's Motion was granted by my Order
dated September 10, 1999.
A hearing was held before the undersigned at the Division, 1205 Pendleton Street, Suite 224, Columbia, South Carolina on
November 9, 1999. Notice of the time, date, location, and nature of the hearing was timely sent to all parties, as well as to
the Protestant.
FINDINGS OF FACT
Having observed the 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 Protestant, 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 Shelton's, located at
105 West Lady Street, Swansea, South Carolina 29160.
4. Shelton's is a convenience store that sells miscellaneous grocery items and has an on- site food preparation area.
5. Joyce R. Saylor filed a Protest on behalf of the Swansea United Methodist Church. The Protestant did not file a Petition
to Intervene.
6. Thrifty Way's hours of operation are 5:00 A.M.-- 12:00 midnight, Monday through Sunday.
7. The Department filed a Motion to be Excused from attending the hearing on July 23, 1999, which was subsequently
granted by my Order signed September 20, 1999.
8. In its Motion, the Department indicated that the Petitioner met all statutory requirements relative to the application 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).
9. 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 the application of an off-premises beer and
wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Code 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 jurisdiction 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 Protestant concerning a possible detriment to their community is conjectural and without any specific factual support.
8. The major complaints of the Protestant 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
granting the 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 grant the off-premises beer and wine permit to Shelton
Food Stores, Inc., d/b/a Shelton's, located at 105 West Lady Street, Swansea, South Carolina 29160 upon payment of the
appropriate fees.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
November 15, 1999.
Columbia, South Carolina. |