ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) on the
application of Charles Perry Smith, Jr. for a minibottle license for a restaurant to be located at 10809 Two Notch Road,
Elgin, South Carolina. After notice to the parties and protestants, a hearing was conducted on May 15, 2000. Based upon
the evidence presented regarding the suitability of the location, this tribunal finds the nature of the area in which the
restaurant is to be located suitable for the issuance of a minibottle license. Any motions or issues raised in the proceedings,
but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).
STIPULATIONS
At the hearing of this matter, Petitioner's counsel stipulated in open court that the only issue before this tribunal was whether
the location was suitable for a minibottle license. Counsel for Petitioner further stipulated that his client does not currently
satisfy the statutory criteria concerning the conduct of a business engaged primarily and substantially in the preparation and
serving of meals.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into
account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. On July 9, 1999, Petitioner submitted an application for a bona fide restaurant minibottle license with the South Carolina
Department of Revenue for the premises located at 10809 Two Notch Road, Elgin, South Carolina. Petitioner's application
is incorporated into the record by reference.
2. Petitioner leases the proposed location from Margaret Smith.
3. Petitioner currently operates a game room at the proposed location and was issued a beer and wine permit for this location
in February of 1999. This business is located directly off of Two Notch Road, a well traversed highway in this rural
community. The area in which the business is situated is a mix of residential dwellings and commercial establishments.
4. Petitioner has no criminal convictions and is a person of good moral character.
5. Petitioner is a legal resident of the United States.
6. Petitioner has resided in and maintained his principal place of abode in South Carolina for more than thirty days before
applying for a minibottle license.
7. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has never had any permit to
sell beer and wine or alcoholic liquors suspended or revoked.
8. Petitioner is over twenty-one years of age.
9. Notice of application for the beer and wine permit and minibottle license was published in The Columbia Star on July 22
and 29, 1999 and August 5, 1999. Notice was also posted at the proposed location for the time-period required.
10. Richard G. Whiting, Rev. Robert Winburn, and John Tyler filed protests to Petitioner's application on the ground that
the proposed location is unsuitable. They contend that the proposed location is unsuitable because of its proximity to
surrounding neighborhoods and the potential health hazards that may result if patrons of the establishment drive while under
the influence of alcohol.
11. But for the protests, the Department would have issued the minibottle license, upon Petitioner's satisfaction of all
statutory criteria.
12. There are no churches, schools, or playgrounds within close proximity to the proposed location. CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999),
S.C. Code Ann. § 1-23-600(B) (Supp. 1999) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 1999).
2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or
official to whom the duty of issuing it is committed[.]" Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984).
3. S.C. Code Ann. § 61-6-1820 (Supp. 1999) establishes the criteria for the issuance of a minibottle license. Although the
suitability of the proposed location is not listed in this statute as a condition of licensing, such a consideration is proper.
Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining
the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5. 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); Schudel v. South Carolina ABC
Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6. "The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may
find the location to be unsuitable . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992);
Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
7. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v.
Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best
position to judge the witness's demeanor and veracity and evaluate his testimony. See 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); Mann v. Walker, 285 S.C. 194, 328 S.E.2d
(Court. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Court. App. 1984).
8. 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 the issuance of a permit or license is protested is not a sufficient reason by itself to deny
the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981);
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
9. This tribunal is respectful of Protestants' sentiments concerning the issuance of the license in question. Nevertheless,
there was no sufficient evidentiary showing that the present location is unsuitable or that the issuance of a minibottle license
would affect residents' safety, create traffic problems, or have an adverse impact on the community.
10. The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support
when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and
conclusions not supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972).
11. I find the location to be suitable for the issuance of a minibottle license due to the commercial nature and array of
businesses in the area in which it is to be situated.
12. The Department shall continue to process Petitioner's application for a minibottle license.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Department shall continue to process Petitioner's application for a minibottle license.
AND IT IS SO ORDERED.
___________________________
JOHN D. GEATHERS
Administrative Law Judge
May 30, 2000
Columbia, South Carolina. |