ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2003) upon the filing of an application by Petitioner Aldi NC,
LLC, d/b/a Aldi #79 (“Petitioner”), for an off-premises beer and wine permit for a location at 4115
Clemson Blvd., Anderson, South Carolina (“the subject location”). Upon receipt of a written protest
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 Protestant, a contested case hearing was held on January 14, 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 Protestant in a timely manner.
2.Petitioner seeks an off-premise beer and wine permit for the subject location of 4115
Clemson Blvd., Anderson, South Carolina. Petitioner operates a grocery 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.There are no churches, schools, or residences within the immediate vicinity of the
subject location.
5.The Protestant states that the subject location should not be licensed to sell beer and
wine because South Carolina and the city and county of Anderson in particular do not need any more
alcoholic beverage stores. He believes that there is already an oversupply of beer and wine locally.
Further, he states that the subject location should not be licensed because of the harm and damage
caused by drinking. He states that the granting of a beer and wine license to the Applicant will add
to the alcohol problems of the State.
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. 2003) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann.
§ 61-2-260 (Supp. 2003) grants the ALJD the responsibilities to determine contested matters
governing alcoholic beverages, beer, and wine.
2.S.C. Code Ann. § 61-4-520 (Supp. 2003) sets forth requirements for determining
eligibility for an off-premises beer and wine permit. One of the requirements is that the location of
the proposed business be a proper one in the opinion of the Department. S.C. Code Ann. § 61-4-520
(6) (Supp. 2003).
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, 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).
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).
6.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).
7.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).
8.Although this tribunal is impressed with the sincerity of the Protestant and the
concerns expressed by him, our legislature has chosen to allow the sale of alcohol in this State. There
was no evidence presented which would allow one to conclude that the subject location will
contribute to alcohol-related problems to any greater degree than any other location. Much of the
Protestant’s arguments against the granting of the license sought herein is that he does not want the
sale of alcohol. However, an aversion to the sale of alcoholic beverages is not within the statutory
grounds for denial of a license request. Considering all relevant factors, I find that the proposed
location is a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 2003). I further 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 4115 Clemson Blvd., Anderson, South Carolina, is granted;
AND IT IS SO ORDERED.
________________________________________
C. Dukes Scott
Administrative Law Judge
January 15, 2004
Columbia, South Carolina |
