ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2002) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner Kathy
Lawson, d/b/a Kathy’s Produce (“Petitioner”), for an on-premises beer and wine permit for a location
at 1120 South Lee Street, Batesburg-Leesville, South Carolina (“the subject location”). Some
concerned citizens protest the application on the basis of the suitability of the subject location due to
the close proximity to their residential community. On the basis of a motion to intervene, Nathan
Shealy was made a party to this matter. The Respondent South Carolina Department of Revenue
(“Department”) was excused from attending the hearing on the basis of its own motion. After careful
consideration and for the following reasons, the Petitioner’s application is granted.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, 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.Notice of the time, date, place, and subject matter of the hearing was given to all
parties and to the Protestants in a timely manner.
2.Petitioner seeks an on-premise beer and wine permit for the subject location of 1120
South Lee Street, Batesburg-Leesville, South Carolina.
3.Petitioner has operated the current business at the subject location for approximately
six months. Petitioner already has an off-premises permit to sell beer and wine at the subject location.
4.The Department moved to be excused from the hearing of this matter on the basis that
there is no controversy between the Petitioner and the Department and that the Department would
have issued the requested permit but for the unanswered question of the suitability of the location
raised by the Protestants. The Department’s motion to be excused was granted.
5.Petitioner’s business is essentially that of a produce store. However, Petitioner has
pool tables in a back room of the premises, and Petitioner seeks a permit to sell on-premises beer and
wine to their patrons who use the back pool room. Petitioner will not allow anyone to enter the back
pool room or to purchase beer or wine unless that person first shows identification that proves that
person to be over the age of twenty-one. The only exception to this policy will be that Petitioner will
allow groups which include individuals under the age of twenty-one to reserve the pool room in
advance for group functions, but Petitioner will not sell beer or wine for on-premises consumption
during the time that the pool room is reserved and being used by such groups.
6.The back pool room has a jukebox which plays music; however, the volume of the
jukebox is controlled by a remote-control which will at all times be in the possession of the employees
of Petitioner’s business, so that the employees can control the noise level generated by the jukebox.
The Petitioner, her husband, and her sister will be the only individuals working in the establishment,
and none of them intend to allow the music to reach high volumes.
7.The Intervenor and Protestants reside in the community in which the subject location
is located. They object to the Petitioner’s application. The Intervenor and Protestants are concerned
because the subject location is situated on a busy highway with lots of traffic, sometimes moving at
high rates of speed, and they fear that the traffic will worsen and wrecks will occur, including
potentially fatal wrecks, if the application is granted. They are concerned that drivers leaving the
subject premises will be impaired due to alcohol consumed on the premises. They are also concerned
because a church is located within a half-mile of the subject location, and the church holds youth
camps and retreats throughout the year. They also worry because the law enforcement response is
slow in their community, due to its location, which would be a concern in the event of car accidents
and/or a disturbance at the subject location. Additionally, they are frustrated with the litter and the
empty beer cans in the area, and they believe that the litter will increase if the application is granted.
They anticipate that there may be a noise problem if the application is granted. They further worry
that the application, if granted, will impact property values in the area.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law, the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Administrative
Law Judge Division (“ALJD”) to hear contested cases under the Administrative Procedures Act
(“APA”). Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the ALJD the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
2.S.C. Code Ann. § 61-4-520 (Supp. 2002), which sets forth the requirements for the
issuance of a beer and wine permit, provides in part:
No permit authorizing the sale of beer or wine may be issued unless . . .
(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.
S.C. Code Ann. § 61-4-520 (6), (7) (Supp. 2002).
3.Although “proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). 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.
4.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v.
S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an
administrative law judge is authorized to determine the fitness or suitability of the proposed business
location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion.
Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). 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.
5.Proximity of a location to a church, school, playground, or residence is a proper
ground, by itself, on which the location may be found unsuitable for a permit to sell beer and wine.
Byers v. S.C. ABC Comm’n, 305 S.C. 243, 401 S.E.2d 653 (1991); Moore v. S.C. ABC Comm’n,
308 S.C. 167, 417 S.E.2d 555 (1992).
6.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 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.An important factor is whether the location has in the recent past been permitted and
whether the location is now more or less suitable than in the past. Taylor v. Lewis, 261 S.C. 168,
198 S.E.2d 801 (1973).
6.Based on the weight of the evidence, I find that the location is a proper one. The
location has already been permitted to sell beer and wine off-premises. Although the Intervenor and
the Protestants are concerned about people being able to drink alcohol on the premises of the subject
location and then get in their cars and drive on the roadways in their community, the legislature of
this state has made it permissible for the Department to grant on-premises beer and wine permits in
this state; therefore, the Intervenor’s and Protestants’ concern, while understandable, is not a ground
for denying the application. Further, although the Intervenor and Protestant are concerned about the
litter along the roadway in their community, the evidence established that such litter already exists,
and none of the witnesses could say whether any of the litter was actually generated from people
leaving the subject location. Although the subject location has a jukebox that plays music, the
employees working at the subject location will have sole access to the remote control that controls
the volume level of the jukebox, and the three individuals who will be working at the subject location
do not intend to allow loud music in the establishment. The issue raised by the Intervenor and the
Protestants concerning the impact, if any, the granting of the application will have on property values
in the area is essentially a zoning issue, which cannot be addressed by this tribunal. The remainder
of the Intervenor’s and Protestants’ objections to the Petitioner’s application, as set forth herein,
consist primarily of speculation as to what may happen in the future and are insufficient to
demonstrate an adverse impact on the community if the application is granted.
7.Because I find that the location is suitable for a permit to sell beer and wine, and all
other criteria for an on-premises beer and wine permit are met, Petitioner’s application must be
granted.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner’s application for an on-premises beer and
wine permit for the location at 1120 South Lee Street, Batesburg-Leesville, South Carolina, is
granted;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 17, 2003
Columbia, South Carolina |
