SC Administrative Law Court Decisions

STATEMENT OF THE CASE

The above-captioned matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing. Petitioner Taste of Grape, a partnership formed by Teressa L. Beagen and Franklin D. Fleming (Applicants), seeks a beer and wine permit for a wine and cheese shop to be located at 104 Trinity Street in downtown Abbeville, South Carolina. The South Carolina Department of Revenue (Department) would have granted the permit but for a protest filed by Reverend Bobby Cutter regarding the suitability of the wine shop’s proposed location. Accordingly, the Department was excused from the hearing of this matter. After timely notice to the parties and the protestant, a hearing was held on June 10, 2004, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location and upon the applicable law, I find that Petitioner’s application for an on- and off-premises beer and wine permit should be granted.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, 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.Applicants, on behalf of their partnership, Taste of Grape, submitted an application to the Department for a permit allowing the sale of beer and wine for on- and off-premises consumption from the premises located at 104 Trinity Street in Abbeville, South Carolina. This application and the Department’s file on the application are hereby incorporated into the record by reference.

2.Petitioner Taste of Grape is a general business partnership formed by Applicants Teressa L. Beagen and Franklin L. Fleming on December 1, 2003. Applicants seek to operate a gourmet wine and cheese shop to be known as Taste of Grape. Customers of the shop will be able to purchase wine by the glass for consumption at the store, wine by the bottle for home consumption, and a variety of food offerings, including gourmet jellies, chocolates, and fresh cheeses for consumption either in the shop or at home. Applicants do not intend to sell beer at their gourmet wine shop.

3.Applicants are over twenty-one years of age, are persons of good moral character, and have no delinquent state or federal taxes. Applicants are residents of the United States and South Carolina, and they resided and maintained their principal places of abode in this state for at least thirty days prior to filing their application. Further, neither Applicant has had a beer and wine permit or an alcoholic beverage license suspended or revoked.

4.Notice of Petitioner’s application for an on- and off-premises beer and wine permit appeared in The Press and Banner, a newspaper published in the town of Abbeville with general circulation in Abbeville County, once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

5.The proposed location is a retail storefront on Trinity Street, near its intersection with Main Street, in the commercial district of downtown Abbeville, South Carolina. There are no schools or playgrounds within the vicinity of the proposed location. The two churches nearest to the proposed store are situated over five hundred and over one thousand feet away from the store, respectively. The only residence located within the area surrounding the proposed location is also over one thousand feet away from the location.

6.Protestant Reverend Bobby Cutter opposed Petitioner’s application because of the fatalities, injuries, and damage caused by individuals driving under the influence of alcohol and because of his general moral aversion to the sale of alcoholic beverages.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

1.Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003).

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. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).

3.S.C. Code Ann. § 61-4-520 (Supp. 2003) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(6)-(7).

4.Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness and suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5.The determination of suitability of location is not necessarily a function solely of geography. Rather, 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. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6.However, without sufficient evidence of an adverse impact on the community, a permit 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 C.J.S. Intoxicating Liquors § 119 (1981).

7.Further, 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 the 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).

8.In particular, blanket objections to the sale of liquor generally that are unrelated to the specific characteristics of the location or applicant in question do not provide a sufficient basis for the denial of an application. As the court in Ladd v. Board of County Commissioners, 361 P.2d 627 (Colo. 1961) elaborated when faced with a similar case,

It is perfectly apparent from the record in the instant case that those opposing the granting of this application as a matter of principle would militantly oppose the granting of any application for a liquor license under any and all circumstances in any area of the county. While we respect their views, it is at once apparent that they are not in harmony with the law on that subject as established by the General Assembly. . . . . The General Assembly has decreed that the business of manufacturing, distributing and selling of liquor is lawful when supervised and controlled as provided by law. This court cannot consider objections to a license rooted solely in basic abhorrence to alcoholic beverages in any form, at any place, at any time. Such arguments are more properly addressed to the legislature.

Id. at 630; see also Coffman v. Hammer, 548 S.W.2d 310, 312 (Tenn. 1977) (holding that objections to a license application based upon the belief that “beer is a dangerous and deadly commodity, the consumption of which leads to dire and disastrous consequences” must be addressed to the state legislature, rather than permitting authorities). Likewise, Reverend Cutter’s general objections to the sale of alcoholic beverages as a matter of principle should be directed to the South Carolina General Assembly, rather than this tribunal.

9.In short, in making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of a beer and wine permit, and there has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner’s store or that the issuance of the permit would create problems in or have an adverse impact on the surrounding community. In the case at hand, Reverend Cutter’s opposition to the issuance of Petitioner’s permit is based upon his general concerns regarding the effect of the consumption of alcohol on society as a whole and upon his moral objections to the consumption of alcohol. This tribunal acknowledges Reverend Cutter’s opposition to Petitioner’s permit and respects his right to state that opposition before this tribunal. Nevertheless, it must also be recognized that the mere aversion to the sale of alcoholic beverages is not within the statutory grounds for the denial of a permit request and that such general objections to the sale of alcohol, as opposed to specific concerns with a particular permit applicant or permitted location, are more properly addressed to the legislature, rather than this administrative tribunal. Accordingly, the arguments proffered by the protestant do not constitute a sufficient basis upon which to deny Petitioner’s application. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981).

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that the Department shall continue to process Petitioner’s application for an on- and off-premises beer and wine permit for the premises located at 104 Trinity Street, Abbeville, South Carolina.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

June 16, 2004

Columbia, South Carolina