FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-1310 and 12-60-1320
(Supp. 1997) upon the application of Warren S. Holland, d/b/a Holland's, 2001 Augusta Highway
in Lexington, for an on-premises beer and wine permit and minibottle license, filed with the South
Carolina Department of Revenue ("DOR"). Protests were filed alleging that the proposed location
is unsuitable. The matter was transmitted to the Administrative Law Judge Division, and a
contested case hearing was held on September 21, 1998. Upon review of the relevant and probative
evidence and applicable law, the permit is granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
Notice of the time, date, place and subject matter of the hearing was given to the
parties and protestants.
Warren S. Holland is the applicant for an on-premises beer and wine permit and a
minibottle license for a location at 2001 Augusta Highway, Lexington, South Carolina, having filed
an application with DOR, AI #115438 and AI#115439.
Major John Tate of the Lexington County Sheriff's Department protested the
application on the basis of concerns by residents that the proposed location will produce
Marion Ringer protested the application based on concerns over traffic, noise,
inconvenience, and property values.
The proposed location is an unimproved parcel in an unincorporated part of
Lexington County, South Carolina, on Augusta Highway (a/k/a U.S. Highway 1), a busy,
The proposed location will operate primarily as a family-oriented restaurant of
approximately 5,000 square feet featuring pool tables, children's games, and an ice cream parlor.
Alcohol sales will not be the primary emphasis of the business, and the location will not stay open
Petitioner and two of his adult children will own and operate the business at the
Petitioner will have actual control and management of the business proposed to be
Construction of the proposed location has not been completed, and the proposed
restaurant has not yet been issued a Class "A" restaurant license.
The proposed location will seat at tables between fifty and one hundred persons
simultaneously for the service of meals.
The proposed location is not within five hundred feet of any church, school, or
playground, as computed by following the shortest route of ordinary pedestrian or vehicular travel
along the public thoroughfare from the nearest point of the grounds in use as part of such church,
school, or playground.
Regardless of whether the permit and license sought are issued, Petitioner intends
to develop the proposed location for some type of commercial business.
The proposed location is zoned for a wide variety of commercial uses, such as a
restaurant and/or bar.
The area surrounding the proposed location is a mixture of commercial and
Immediately adjacent to the proposed location is Reflections, a banquet and
reception hall which regularly serves alcoholic beverages.
Other commercial businesses in close proximity to the proposed location include
several junk yards, a building supply company, an upholstery shop, and mobile home sales
U.S. Highway 1 is a four-lane highway with a speed limit of 55 miles per hour and
is a commercial corridor with heavy traffic.
Permitting the proposed location will not significantly increase traffic in the area.
The nearest residence is located 425 feet from the proposed location, on the opposite
side of U.S. 1.
The proposed location is situated in a "low call" area for the Lexington County
The Lexington County Sheriff's Department will have no problem responding to any
emergency calls from the proposed location or the surrounding area.
The operation of the proposed location will not be burdensome upon the law
enforcement resources of the area, and permitting the proposed location will not strain law
Lexington County has a noise ordinance which neighboring residents and local law
enforcement officials may enforce if the proposed location creates excessive noise.
The granting of the beer and wine permit and minibottle license will not negatively
affect the community.
The testimony of those opposing the requested license or permit consists primarily
of opinions, generalities, and conclusions not supported by facts.
Except for the protest filed, the South Carolina Department of Revenue would have
issued the permit.
The location is suitable for the issuance of an on-premises beer and wine permit.
The location is suitable for the issuance of a business sale and consumption
Notice of the application appeared at least once a week for three consecutive weeks
in The State and was posted at the location for fifteen days.
The applicant, and his partners and co-shareholders are of good moral character.
The Petitioner is over the age of twenty-one.
The applicant is a legal resident of the United States; has been a resident of this State
for at least thirty days before the date of application; and has maintained his principal place of abode
in this State for at least thirty days before the date of application.
Petitioner has not been convicted of a felony within ten years of the date of
Petitioner has never had a beer or a wine permit revoked.
The applicant is suitable for the issuance of an on-premises beer and wine permit.
The applicant is suitable for the issuance of a business sale and consumption
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law, the following:
The Administrative Law Judge Division has subject matter jurisdiction over
contested cases concerning the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260
(Supp. 1997). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (1986
& Supp. 1997) and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1997).
This tribunal has personal jurisdiction over the parties.
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. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
The standard of proof in a contested case hearing is a preponderance of the evidence.
National Health Corp. v. South Carolina Dep't of Health and Envtl. Control, 298 S.C. 373, 380
S.E.2d 841 (Ct. App. 1989).
As the party asserting the affirmative of an issue, the Petitioner bears the burden to
prove he is entitled to a minibottle license and beer and wine permit. 29 Am. Jur 2d Evidence § 127
(1994); Sanders, Neese, and Nichols, South Carolina Trial Handbook, § 9:3 (1994).
Statutory provisions governing biennial minibottle licenses and licensees are found
in the Alcoholic Beverage Control Act, S.C. Code §§ 61-6-10 et seq. (Supp. 1997) ("ABC Act").
"No person, corporation, or organization for whose premises a license is required
pursuant to subarticle 1 of this article may knowingly allow the possession or consumption of
alcoholic liquors upon the premises unless a valid license issued pursuant to Section 61-6-1820 has
been obtained and is properly displayed." S.C. Code Ann. § 61-6-1800 (Supp. 1997).
S.C. Code Ann. § 61-6-20(2) (Supp. 1997) provides:
"Bona fide engaged primarily and substantially in the preparation and serving of
meals" means a business which has been issued a Class A restaurant license prior
to issuance of a license under Article 5 of this chapter, and in addition provides
facilities for seating not less than forty persons simultaneously at tables for the
service of meals.
Since Petitioner will conduct a business bona fide engaged primarily and
substantially in the preparation and serving of meals, he will meet the requirements of S.C. Code
Ann. § 61-6-1820(1) and S.C. Code Ann. § 61-6-1610 (Supp. 1997) upon being granted a Class "A"
restaurant license by DHEC.
Petitioner and the proposed location meet the requirements set forth in S.C. Code
Ann. § 61-6-1820 for issuance of a minibottle license.
The proposed location complies with S.C. Code Ann. § 61-6-120, which provides:
The department shall not grant or issue any license . . . if the place of business is .
. . within five hundred feet of any church, school, or playground situated outside of
a municipality. Such distance shall be computed by following the shortest route of
ordinary pedestrian or vehicular travel along the public thoroughfare from the
nearest point of the grounds in use as part of such church, school, or playground .
. . .
The proposed location is suitable and proper for a minibottle license.
"A person engaging in the business of selling beer, ale, porter, wine, or a beverage
which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply
to the department for a permit to sell these beverages." S.C. Code Ann. § 61-4-500 (Supp. 1997).
Petitioner meets the statutory requirements set forth in S.C. Code Ann. § 61-4-520
(Supp. 1997) to hold a beer and wine permit.
As trier of fact, the Administrative Law Judge is authorized to decide the fitness or
suitability of the proposed business location for a permit to sell beer and wine using broad, but not
unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
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); 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).
The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve 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).
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. Woodall v. Woodall, 322 S.C. 7,
471 S.E.2d 154, 157 (1996), citing McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982).
When the relevant testimony of those opposing the permit consists of opinions,
generalities, and conclusions unsupported by fact, the denial of a permit on the ground of
unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181
(1981). Such unsupported allegations form an insufficient basis for denial. 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).
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 permit was protested does
not serve as a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating
Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).
Given the commercial nature of the surrounding area and the nature of the proposed
business activity, the proposed location is a suitable one for the issuance of an on-premises beer and
wine permit and a business sale and consumption (minibottle) license, pursuant to S.C. Code Ann.
§ 61-4-520(6) and (7)(Supp. 1997).
The application should be granted as it meets all legal requirements, including
suitability of location, for the issuance of an on-premises beer and wine permit and a minibottle
Any issues raised or presented in the proceedings or hearing of this case not
specifically addressed in this Order are deemed denied. ALJD Rule 29(C).
IT IS THEREFORE ORDERED that the South Carolina Department of Revenue issue
an on-premises beer and wine permit to Petitioner for a location at 2001 Augusta Highway,
Lexington, South Carolina.
IT IS THEREFORE ORDERED that the South Carolina Department of Revenue issue
a minibottle license to Petitioner for a location at 2001 Augusta Highway, Lexington, South
Carolina, upon the payment of the required fees and the issuance by the Department of Health and
Environmental Control of a Class "A" restaurant license.
AND IT IS SO ORDERED.
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October ____, 1998
Columbia, South Carolina