South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Katherine E. Dixon, d/b/a Katrina's Mexican House of Beef vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Katherine E. Dixon, d/b/a Katrina's Mexican House of Beef

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-0019

APPEARANCES:
n/a
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310 et seq. upon an application for an on-premises beer and wine permit and minibottle licence for 2307 N. Fraser Street, Georgetown, South Carolina. A hearing was requested by the applicant upon the receipt by DOR of a written protest. A hearing was held on May 4, 1994, in accordance with the Administrative Procedures Act with notice to all parties and protestants. The issues considered were the applicant's eligibility to hold a license/permit; the suitability of the proposed business location; and, the nature of the proposed business activity. The applications for a beer and wine permit and minibottle license are granted.

FINDINGS OF FACT

The applicant seeks an on-premises beer and wine permit and minibottle license for a location at 2307 N. Fraser Street, Georgetown, South Carolina, having filed applications with DOR, AI no. 97144 and AI 97145, on January 3, 1994. The applicant plans to operate the business bona fide engaged primarily and substantially in the preparation and serving of meals as a restaurant. The location was formerly a restaurant which held a beer and wine permit and minibottle license.

The applicant has worked in the restaurant business for twelve years at four restaurants. She has held two previous licenses, without any problems with the police or the ABC Commission.

The intended hours of operation are 11:30 a.m.-2:30 p.m., everyday; 5:00 p.m.-9:00 p.m., Monday-Thursday; and 5:00 p.m.-10:00 p.m., weekends.

The proposed location is on U.S. Highway 701, a four lane highway connecting Conway and Georgetown, in an unincorporated area with mixed commercial and residential dwellings. I find no evidence that the location is within five hundred feet of a church, school, or playground.

Rev. Mark Pinkerton, pastor of Lakewood Baptist Church, located .2 miles from the proposed location, testified in protest to the applications. He expressed concern over the service of alcohol in an area in which possibly intoxicated patrons leaving the location may endanger persons at or near a roller rink, ballfield, and neighborhood in close proximity. I find while those concerns are sincere, they are speculative and lack sufficient evidence to support the likelihood of their occurrence.

Mr. Clifton Hardee, a resident of the area, also testified in opposition to the applications. He did testify, however, that he had experienced no problems with the former permittee/licensee at the same location.

Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, SLED, and DOR. The DOR file was made a part of this record by reference by consent of the parties and protestants. I find that the applicant is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained his principal residence in South Carolina for more than one year. The applicant has not had a permit/license revoked in the last five years. The applicant and her manager, are of good moral character. Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.

Accordingly, I find the proposed location and business activity are suitable and proper and the issuance of a beer and wine permit and minibottle license would not have an adverse effect on the surrounding community.

CONCLUSIONS OF LAW

S.C. Code §61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge Division is empowered to hear all cases previously heard by the now defunct Alcoholic Beverage Control Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

S.C. Code §61-9-320 (Supp. 1993) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.

S.C. Code §§61-5-50 and 61-3-440 (Supp. 1993) set forth the requirements for a minibottle license.

A permit or license must not be issued if an applicant does not meet the standards of S.C. Code §61-3-730 (Supp. 1993).

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 Commission, 317 S.E.2d 476 (S.C. 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 a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d 705 (S.C. 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.

In determining whether a proposed location is suitable any evidence adverse to the location may be considered. The proximity of a location to a church, school, or residences is a proper ground, by itself, on which the location may be found to be unsuitable and a permit denied. William G. Byers v. S.C. ABC Commission, ___ S.C. ___, 407 S.E.2d 653 (1991). The determination is not necessarily a function solely of geography, however. 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. 335 (1985).

S.C. Code §61-9-340 (Supp. 1993) states that upon a determination that an applicant meets the criteria set forth above and has not misstated or concealed a fact in the application, DOR must issue the permit after payment of the prescribed fee.

I conclude that the applicant has carried her burden of proof in establishing that she meets the requisite standards for issuance of the permit and license applied for.









IT IS THEREFORE ORDERED that DOR issue to the applicant an on-premises beer and wine permit and minibottle license upon payment of the prescribed fees.

___________________________

STEPHEN P. BATES

Administrative Law Judge

May 24, 1994

Columbia, South Carolina


 

 

 

 

Copyright © 2025 South Carolina Administrative Law Court