South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Keith Miller, d/b/a The Red Barn vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Keith Miller, d/b/a The Red Barn

Respondents:
South Carolina Department of Revenue

Protestant-Intervenor:
Tina B. Allemond
 
DOCKET NUMBER:
94-ALJ-17-0323-CC

APPEARANCES:
Keith Miller, (pro se) Applicant

Tina B. Allemond, (pro se) Intervenor and Spokesperson for Protestants
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and

S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an on-premises beer and wine permit for 6700 Platt Springs Road, Lexington, South Carolina, by

Keith Miller filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on January 4, 1995. The issues considered were:

(1) the applicant's eligibility to hold a permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The permit application is hereby denied.

MOTION TO INTERVENE

Prior to the commencement of the formal hearing, Tina B. Allemond, a protestant to the application, moved to intervene as a party in this matter on the grounds that residing less than 200' from the proposed location and sharing a common dirt driveway with the proposed location, she would likely be adversely affected by the final Order; and since DOR did not appear at the hearing, an appeal from an adverse Order would be unlikely . Movant was not represented by counsel. Respondent had notice of movant's protest and was not prejudiced. Further, the proceedings would not be prolonged by intervention. Accordingly, pursuant to Rule 20, movant's motion to intervene was granted.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) Applicant seeks an on-premises beer and wine permit for a location at 6700 Platt Springs Road, Lexington, South Carolina, having filed an application with DOR, AI #100025.

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

(3) The proposed location has formerly been operated as a tavern by previous owners and licensed to sell beer and wine.

(4) The proposed location is in rural Lexington County near Boiling Springs, approximately 500 yards off of Platt Springs Road.

(5) Testifying in opposition to the application were: Tina B. Allemond, a resident of the dwelling adjacent to the proposed location; Deputy Gil Smith of the Lexington County Sheriff's Department; Vivian Adkins, Margaret Harbrecht, and Sonya Craft, residents of the immediate area; and Rev. Randy Smith, Pastor of Boiling Springs United Methodist Church.

(6) The proposed location is located two hundred feet (200') from the Allemond residence and shares a common dirt driveway with the residence.

(7) The proposed location is in plain view of the Allemond residence.

(8) The Allemonds have a five-month old baby.

(9) The Allemonds purchased their home and renovated the structure while the Red Barn was not in operation.

(10) Residents of the area have had past problems with the proposed location such as excessive noise from cars, patrons, and music, litter, vandalism, and traffic accidents.

(11) The Lexington County Sheriff's Department has responded to numerous calls to the Red Barn under different owners, including one in 1992 for a stabbing.

(12) 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.

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

(14) The applicant, who intends to be the manager of the business, is of suitable character and temperament to hold a beer and wine permit.

(15) 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:

(1) The South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and Chapter 23 of Title I of the 1976 Code, as amended.

(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the criteria to be met before issuance of a beer and wine permit.

(3) Pursuant to S.C. Code Ann. § 61-3-730 (Supp. 1993), a permit must not be issued if the applicant is not a suitable person to be licensed or the place of business is not a suitable place.

(4) 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).

(5) The proposed location is unsuitable for the sale of beer and wine because of the proximity the Allemond residence, the presence of children in the area, and the past history of previous operators at the location.

(6) The proximity to a residence of a proposed location is an adequate ground, in and of itself, for denial of a permit. William G. Byers v .S.C. ABC Commission, 407 S.E.2d 653 (1991).





ORDER

IT IS THEREFORE ORDERED that the on-premises beer and wine permit applied for by Applicant is denied.



________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

January __, 1995

Columbia, South Carolina


 

 

 

 

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