ORDERS:
FINAL ORDER AND DECISION
This matter comes before me for a contested case hearing pursuant to S.C. Code Ann. §§1-23-310, et seq. (1986 & Supp.
1998) and S.C. Code Ann. §§ 61-2-260 (Supp. 1998). Frank Nicolette, d/b/a Joy Time ("Petitioner") filed an application
with the Department of Revenue ("Department" or "Respondent") for an on-premises beer and wine permit {AI # 126998}
at a building located at 4245 Greer Highway, Marietta, Greenville County, South Carolina.
A large number of written protests were received by the Department in opposition to the permit and the case was thereafter
transmitted to the Administrative Law Judge Division ("Division"). Although a large number of Protestants appeared at the
hearing, only the following testified: Rev. Samuel F. Tingle, pastor of the Gap Creek Baptist Church; Rev. David A. Roth,
pastor of the Faith Independent Baptist Church; Ms. Darleen Davis and Ms. Patricia W. McCain. Rev. Roth was the
primary spokesperson for the Protestants.
Upon review of the relevant and probative evidence and applicable law, the application for the on-premise beer and wine
permit is denied.DISCUSSION
The sole issue in dispute is the suitability of the location and the proposed business activity. The Protestants contend that
the location is unsuitable because inadequate parking and heavy traffic at the location presents a danger to traffic,
pedestrians and residents of the community, and also that the proposed location does not have adequate police protection.
The basic thrust of the argument of the Protestants expressed concern for the safety of citizens of the area and those
operating vehicular traffic on the major highway between Greenville, South Carolina and Caesar's Head, South Carolina
which runs in front of the location.
Frank Nicolette moved to this area of Greenville County from the state of Wisconsin in March 1999. His vehicle is still
registered in that state. He purchased the real property from Harold J. and Donna J. Yates under a contract for deed dated
April 7, 1999. As a part of the transaction, he also purchased two houses, one on the same side of Highway 276 as the
proposed location and one directly across the highway. He has spent considerable effort and monies in fixing up and
painting the properties. He has also done some yard clearing behind the house which is across the road from the store, and
has plans to let customers sit or camp thereabout.
Mr. Nicolette has been operating a convenience store within the building since 1999. He sells some food items as depicted
in photographs admitted into the record. Petitioner asserts that there is adequate customer parking to accommodate his
patrons. Further, he asserted that he would not allow customers to sit inside the store and drink all day.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
1. Petitioner seeks an on-premises beer and wine permit for a location known as Joy Time which is located at 4545 Greer
Highway ( Highway 276), Marietta, Greenville County, South Carolina. It is located in the Cleveland area and near the
intersection of Highway 276 and the road leading into the River Falls section.
2. Notice of the time, date, and location of the hearing was given to all parties and Protestants.
3. The file transmitted to the Division by the Department is incorporated into the record, with the exception of the written
statements of Protestants not called as witnesses at the hearing and petitions.
4. The proposed location is located in an unincorporated area of Greenville County on Highway 276, known as the Greer
Highway, in the Cleveland area. The location is on a short stretch of the highway which is straight; however, the highway is
full of curves and traverses hills and gradually runs up to Caesars Head.
5. The area surrounding the proposed location is rural in nature and is almost totally residential, excepting for the occasional
convenience store.
6. The Faith Independent Baptist Church is located on Highway 276 (Greer Highway), approximately 1.5 miles in
distance from the location. It has 60 members. Gap Creek Baptist Church is located approximately 4.5 miles from the
location and it has 140 members. Some 40-50 children attend this church.
10. There is a much larger convenience store located at the intersection of Highway 276 and the road leading to River Falls;
it is located some several hundred feet in distance from the location on the opposite side of Highway 276.
11. Presently, petitioner has three coin-operated video game machines in operation at the location. He intends to operate it
as a game room. Petitioner presently sells snacks and soft drinks and a few food items at the location.
12. The proposed location has one table and three chairs, as well as five stools.
13. There is no kitchen at the proposed location.
14. There is one bathroom inside the proposed location.
15. The physical structure is located quite close to Highway 276, as depicted in the photographs admitted into the record.
16. Highway 276 is a very highly traveled road, especially in the summer.
17. Parking along the road right-of-way, especially at night, would create a hazard to passengers in vehicles traveling the
highway, as well as pedestrians.
18. The proposed location is within the jurisdiction of the Greenville County Sheriff's Department. There is no local
sheriff's office; response time to the proposed location and the general area would be slow.
19. Petitioner has never had a permit to sell beer and wine revoked.
20. Petitioner is over twenty-one years of age and is a citizen of the State of South Carolina; further, petitioner has
maintained his principal residence in South Carolina for more than thirty days. Petitioner has no criminal record and is of
good moral character.
21. Notice of the application appeared in The Travelers Rest Monitor, a newspaper of general circulation in the area of the
proposed location, for three consecutive weeks. Also, notice of the application with the Department was posted at the
location by an agent of the State Law Enforcement Division by displaying a sign for fifteen days.
22.. The Protestants primarily complain of inadequate or dangerous parking at the location which would result in an unsafe
situation for passengers traveling the highway and for pedestrians. Further, they complain of the lack of police protection if
disturbances occur at the location. They assert that the granting of the permit at the location would detrimentally affect the
well-being of the citizens using the highway and those who reside in the community..
23. Based upon the concerns addressed by the Protestants, and the lack of timely police protection in the general area, I find
that the location is unsuitable for the granting of an on-premise beer and wine permit and that the permit must be denied.
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 subject matter pursuant to S.C. Code
Ann. §§ 61-2-260 (Supp. 1998) and 1-23-310, et seq. (1986 & Supp. 1998).
2. S.C. Code Ann. § 61-4-520 (Supp. 1996) which sets forth the requirements for the issuance of a beer and wine permit,
provides as follows:
No permit authorizing the sale of beer or wine may be issued unless:
1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be
employed on the licensed premises, are of good moral character.
2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days
before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the
date of application.
3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least
thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days
before the date of application or has been licensed previously under the laws of this State.
4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.
5) The applicant is twenty-one years of age or older.
6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.
7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences,
schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.
8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give
notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The
department must determine which newspapers meet the requirements of this section based on available circulation figures.
However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are
published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer or
wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the
department.
9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of permit sought;
(b) state where an interested person may protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
3. 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).
4. The preponderance of the evidence "is evidence which is of the greater weight or more convincing than the evidence
which is offered in opposition to it...." Black's Law Dictionary 1182 (6th Edition 1990). "The preponderance of the
evidence means such evidence as, when considered and compared with that opposed to it, has more convincing force and
produces in the mind the belief that what is sought to be proved is more likely true than not true." Sanders, Neese, and
Nichols, South Carolina Trial Handbook, section 9:5 Quantum of Evidence in Civil Cases (1994), (citing Frazier v. Frazier,
228 S. C. 149, 89 S.E.2d 225 (1955).
5. Evidence has probative value "if it tends to prove an issue." Black's Law Dictionary 1203 (6th ed. 1990).
6. A trial judge, who observes the witness, is in the better position to judge his demeanor and veracity and evaluate his
testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d
44 (Ct. App. 1984); McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d
392 (1973).
7. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact (judge) in determining
the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald
F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
8. It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance
and weight of any testimony and evidence offered.
9. 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 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. The proximity of a location to a church, school or residences is a proper ground by itself, on
which the location may be found to be unsuitable and a 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 law enforcement problems in the
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.
10. In considering suitability of location, it is relevant to consider previous history of the 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).
11. In this case, the Protestants have addressed several concerns which must be considered by this tribunal. A thorough
consideration of those concerns requires that the permit as requested for the on-premises sale and consumption of beer and
wine be denied. The location is located very close to Highway 276. Patrons leaving the location having consumed beer or
wine would create a great potential for accidents and resulting injury to passengers traveling in vehicles along the highway.
Also, any disturbances resulting from patrons consuming beer or wine at the location would create potential danger to those
citizens living in the community and such disturbances could not be quelled quickly by law enforcement. I find that the
objections raised by the Protestants are sufficient to show that the location is unsuitable. These safety concerns deem it
imperative that the court deny this permit.
This tribunal is particularly concerned with protecting the safety and well-being of citizens in the community in which they
live.
12. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are
privileges granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies
with the restrictions and conditions governing them. The Administrative Law Judge, as the trier of fact authorized to grant
the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax
Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
13. 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.
14. I conclude that the Petitioner has not met his burden of proof in showing that he meets all of the statutory requirements
for holding an on-premises beer and wine permit at the location. Thus, I further conclude that the proposed location is not a
proper one for granting the permit.
ORDER
Based upon the above Discussion, Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Frank Nicolette, d/b/a Joy Time for an on-premises beer and wine permit for the store
located at 4245 Greer Highway, Marietta, Greenville County, South Carolina, is denied.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 30, 2000 |
