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 Jackie
Harrell Redi Mart, LLC (“Petitioner”), for an off-premises beer and wine permit for a location at
7306 Highway 81 South, Starr, South Carolina (“the subject location”). Upon receipt of written
protests to the Application, the South Carolina Department of Revenue (“DOR”) transmitted the case
to the Administrative Law Judge Division (“ALJD”) for a hearing. After timely notice to the parties
and the Protestants, a contested case hearing was held on January 6, 2004, at the ALJD in Columbia,
South Carolina. DOR was excused from attending the hearing. Upon review of the relevant and
probative evidence and applicable law, the Application for an off-premises beer and wine permit is
granted.
FACTS
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 off-premises beer and wine permit for the subject location of 7306
Highway 81 South, Starr, South Carolina. Petitioner operates a convenience store at that location.
3.In its agency transmittal document, DOR stated that, based on the Petitioner’s
Application and the investigation conducted by South Carolina Law Enforcement Division (“SLED”),
the Petitioner meets all statutory requirements for an off-premises beer and wine permit.
4.The Protestants’ primary concern is the proximity of the subject location to Starr
Elementary School, which, according to SLED’s measurement, is situated 322 feet away from the
subject location. However, Protestant L. Hugh Smith, Superintendent of Anderson School District
3, could not specifically state how the approval of this Application would interfere with the operation
of the school. There is no statutory minimum distance required between a school and a location
licensed for off-premises sales of beer and wine. The Protestants expressed concern as to the
adequacy of law enforcement; however, the Anderson County Sheriff did not protest the Application,
nor did he express any such concerns. Some of the Protestants also expressed concern that the
number of intoxicated drivers and traffic generally might increase.
5.Based on the testimony of Protestant L. Hugh Smith, I find that the Petitioner would
not sell beer or wine to the students of the elementary school or to one who is intoxicated, nor would
he allow loitering or on-premises consumption of beer and wine. Petitioner is a valued member of
the community and a generous and unselfish supporter of the schools and the community as a whole.
6.The protests of those who failed to appear at the hearing are considered abandoned.
7.The granting of the Application will not create a bar where patrons consume beer and
wine and then leave the premises in their automobiles.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the 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) sets forth requirements for determining
eligibility for an off-premises beer and wine permit.
3.Permits issued by the State for the sale of beer, wine, and liquor 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. See Feldman v. S.C.
Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
4.Without sufficient evidence of an adverse impact on the community, an 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).
5.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 an off-premises beer and wine permit 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.
6. “Proper location” is not statutorily defined, and 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.
7.The issue raised by the Protestants regarding traffic is essentially a zoning issue. Such
authority is vested solely in the local government.
8.In considering the suitability of a location, it is relevant to consider whether the
testimony in opposition to the granting of a permit 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).
9.This tribunal is impressed with the sincerity with which each of the Protestants
expressed his or her concerns. However, considering all relevant factors, I find that the Application
for an off-premises beer and wine permit should 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 off-premises beer and
wine permit for the location at 7306 Highway 81 South, Starr, South Carolina, is granted;
AND IT IS SO ORDERED.
________________________________________
C. Dukes Scott
Administrative Law Judge
January 7, 2004
Columbia, South Carolina |