ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 1-23-600 et seq.
(Supp. 1998); 61-4-520 (Supp. 1998); and 61-6-1820 (Supp. 1998) following the Petitioner's, Sparky's Pecan Outlet, Inc.,
(Sparky's), request for a contested case hearing. The Respondent, South Carolina Department of Revenue (Department)
denied Sparky's application for an on-premises beer and wine permit and a sale and consumption (minibottle) license because
of public protests by concerned citizens concerning the suitability of location.
The Department filed a Motion to be Excused, stating that the proposed location met all statutory requirements for an on-premises beer and wine permit and a sale and consumption (minibottle) license and it would have granted the permit and
license but for the public protests of the concerned citizens. The Court did not grant this Motion.
A hearing was held in this matter on March 30, 2000 at the Division, located at 1205 Pendleton Street, Suite 224, Columbia,
South Carolina. Notice of the time, date, place, location, and nature of the hearing was timely sent to all parties, as well as
the Protestant. Prior to the hearing, the Protestant made a Motion to Intervene pursuant to ALJ Rule 20, which I granted.
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. Sparky's seeks an on-premises beer and wine permit and a sale and consumption (minibottle) license for an establishment
located at 2416 South Highway 501, Marion, South Carolina in Marion County.
2. The parties received notice of the time, date, place, and subject matter of this hearing.
3. Linda Small, (Small), the Principal officer of Sparky's, was born on May 16, 1949 and was 50 years of age at the time of
the hearing.
4. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Marion Star & Mullins
Enterprise, a newspaper of general circulation in the local area where the applicant proposes to engage in business. This
notice appeared on June 16, 1999, June 23, 1999, and June 30, 1999.
5. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed
location.
6. Linda Small, the principal of Sparky's, has been a legal resident of the State of South Carolina for over thirty (30) days
and has maintained her principle place of abode in the State of South Carolina for over thirty (30) days.
7. Neither Sparky's nor Small has ever had a beer or wine permit or any other alcoholic beverage license/permit issued to it
revoked. The location has not been permitted previously for the sale of any alcoholic beverages.
8. Small is of good moral character. Small does not have a criminal record.
9. The business hours of the location are 7:00 a.m. to 12:00 midnight..
10. Sparky's food preparation business accounts for approximately ten (10%) percent of the total sales at the location.(1)
11. Highway 501 is a highly traveled major traffic artery to the Grand Strand of South Carolina. In front of Sparky's
Highway 501 is a four lane highway divided by a concrete median. A majority of Sparky's business is derived from
westbound traffic leaving the Grand Strand area.
12. Reedy Creek Baptist Church is located more than 500 feet east of Sparky's on Highway 501. Wellwood Road separates
Sparky's from the church.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 Supp. 1998).
2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the
agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops,
Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984).
4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the relevance
and weight of any testimony offered.
5. 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 operation 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). Any evidence adverse to the location may be
considered. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the Judge may consider
whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246,
317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of other licensed locations in
the immediate vicinity, as well as the existence of small children in the area.
6. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to
determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts.
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
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 alone to deny the
application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. S.C. Code Ann. § 61-4-525 (Supp. 1998) provides that a person residing in the county in which a beer and wine permit is
requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if
he files a written protest.
9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the
police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10. In this instance, the fact that food preparation consists of ten (10%) percent of the overall sales reveals that Sparky's is
not a business engaged primarily and substantially in the preparation and serving of meals or furnishing lodging as required
for a sale and consumption (mini-bottle) license pursuant to S.C. Code Ann. § 61-6-1820 (Supp, 1998).
11. Standards for judging the suitability of a proposed location for the sale of beer and wine are not to be determined by the
local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State of
South Carolina. The sale of beer and wine is a lawful enterprise in South Carolina, regulated by the State.
12. After considering all the relevant factors, I find that the location is not suitable for the sale consumption of minibottles. I
do, however, find that the location is suitable for the on-premises sale of beer and wine.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Linda Small for a sale and consumption (minibottle) license is denied.
IT IS ALSO ORDERED that the application of Linda Small for an on-premises beer and wine permit is granted.
AND IT IS SO ORDERED.
_____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 3, 2000
Columbia, South Carolina
1. Originally, the Department determined that Sparky's met all statutory requirements for a sale and consumption license.
At the hearing, however, the Department withdrew this determination after testimony concerning the amount of food sales in
comparison with total sales. |
