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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Evelyn G. Sims, d/b/a Service Mart vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Evelyn G. Sims, d/b/a Service Mart

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-0031

APPEARANCES:
Kenneth Allen, Esq. for Applicant

William Rhoden, Esq. for Protestants
 

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 off-premises beer and wine permit for 905 Cherokee Avenue, Gaffney, South Carolina, by Evelyn G. Sims filed with the Department of Revenue and Taxation (DOR). A hearing was held on May 6, 1994. The issues considered were the applicant's eligibility to hold a permit; the suitability of the proposed business location; and, the nature of the proposed business activity. The permit application is denied.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) The applicant seeks an off-premises beer and wine permit for a location at 905 Cherokee Avenue, Gaffney, South Carolina, having filed an application with DOR, AI no. 97359, on January 26, 1994.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, SLED, and DOR.

(3) The following protestants were present and testified in opposition to the application at the hearing: Wilson Truluck; Dr. James Sampley, pastor of Cherokee Avenue Baptist Church; and Gelene Caldwell.

(4) The proposed location is at the corner of Cherokee Avenue and Third Street just outside the city limits of Gaffney. On the other three corners of the intersection are the Cherokee Avenue Baptist Church, a softball field, and a car lot.

(5) Cherokee Avenue Baptist Church is two hundred twenty-two feet (222') from the proposed location, separated from the proposed location by Third Street.

(6) Services are held at Cherokee Baptist Church on Sundays, but activities take place at the family life center, located to the rear of the church property, on a daily basis.

(7) The surrounding neighborhood is commercial and residential in nature and in decline.

(8) The Cherokee Food Mart is located across Cherokee Avenue from the location. It is currently licensed to sell beer and wine.

(9) The applicant is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained her principal residence in South Carolina for more than one year.

(10) The applicant has not had a permit revoked in the last two years.

(11) The applicant, who intends to be the manager of the business, is of good moral character.

(12) 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.

CONCLUSIONS OF LAW

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

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.

In regard to the issuance of beer and wine permits, S.C. Code §61-9-320 (Supp. 1993) provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

(1) The applicant, any partner or shareholder, and each agent, employee, and servant of the applicant to be employed on the licensed premises, are of good moral character;



(2) The retail applicant is a legal citizen of this State and of the United States and has been a citizen maintaining his principal residence in South Carolina for at least thirty days prior to application;

(3) The applicant has not had a beer and wine permit revoked in the last two years;

(4) The applicant is twenty-one years of age or older;

(5) The location of the proposed place business is in the opinion of the department a proper one. The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches. This item does not apply to locations licensed before its effective date;

(6) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business;

(7) Notice has been given by displaying a sign for fifteen days at the site of the proposed business.

A permit must not be issued under S.C. Code §61-3-730 (Supp. 1993) if the applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a sufficient number of licenses have already been issued in the State, municipality, or community.

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.

In the instant case, I conclude that the proximity of the proposed location to Cherokee Avenue Baptist Church and the softball field makes it an unsuitable site for a beer and wine permit. The community is adequately served by other beer and wine outlets in the area.

IT IS THEREFORE ORDERED that DOR deny the off-premises beer and wine permit applied for.

___________________________

STEPHEN P. BATES

Administrative Law Judge

May 31, 1994

Columbia, South Carolina


 

 

 

 

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