Roche v. South Carolina Alcoholic Beverage Control Commission, 19947

• Decision Date: 17 January 1975
• Docket Number: No. 19947,19947
• Citation: 211 S.E.2d 243,263 S.C. 451
• Court: South Carolina Supreme Court
• Parties: James L. ROCHE, Appellant, v. The SOUTH CAROLINA ALCOHOLIC BEVERAGE CONTROL COMMISSION et al., Respondents.

Page 243

211 S.E.2d 243

263 S.C. 451

James L. ROCHE, Appellant, v. The SOUTH CAROLINA ALCOHOLIC BEVERAGE CONTROL COMMISSION et al., Respondents.

No. 19947.

Supreme Court of South Carolina.

Jan. 17, 1975.

Jack F. McGuinn and Kenneth R. Kitts, Columbia, for appellant.

Asst. Atty. Gen. Dudley Saleeby, Jr., Columbia, for respondents.

LITTLEJOHN, Justice:

On August 31, 1973, Appellant, James L. Roche, applied to the South Carolina Alcoholic Beverage Control Commission for a retail permit to sell chilled beer and wine for off-premises consumption at his grocery store.

The application was protested and a hearing was held. The Commission determined that the location of Appellant's store was unsuitable.

Appellant sought Certiorari before John A. Mason, Richland County Court Associate Judge. After a hearing on the application Judge Mason concluded that the Commission had before it evidence to sustain its finding that the location of Appellant's store was unsuitable.

On appeal to this Court Appellant alleges that Judge Mason erred in three particulars:

'(1). In failing to hold that Section 4--212(6) of the South Carolina Code of Laws 1962 is unconstitutional as the section does not contain sufficient guidelines to determine what is a proper location;

'(2). In failing to hold that Appellant was unlawfully discriminated against since there were other businesses in the same location possessing similar permits;

'(3). In failing to hold that there was insufficient evidence to support the denial of Appellant's application.'

Appellant submits that the lower court decision should be reversed and that we should direct the Commission to issue a permit for selling chilled beer and wine for off-premises consumption. We disagree.

The first two issues, (1) that Section 4--212(3) is unconstitutional and (2) that Appelalnt was unlawfully discriminated agianst, are not properly before this Court for consideration. Neither was raised in the court below. In Powers v. City of Aiken, 255 S.C. 115, 117, 177 S.E.2d 370, 371 (1970), this Court stated that the purpose of appeal under our procedure is 'to determine if the lower court did something that it should not have done, or omitted doing something it should have done.' Accordingly, a trial judge will not be reversed for failing to act on a matter that was not submitted to him.

Appellant asserts that there was insufficient evidence to support the denial of his petition. This Court finds that there was ample supporting evidence. Testimony at the hearing revealed the following '(a) law enforcement officers in the area had constant problems with public...