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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Elaine G. Inabinett and Frank Perry, d/b/a Cooter Dam Grocery vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Elaine G. Inabinett and Frank Perry, d/b/a Cooter Dam Grocery

Respondents:
South Carolina Department of Revenue Lillie Mae Bodison
 
DOCKET NUMBER:
97-ALJ-17-0364-CC

APPEARANCES:
For the Petitioner: Pro Se

For the Respondent Bodison: Harris L. Beach, Jr., Esquire

For the Sheriff's Office: Detective Steve Bassele
 

ORDERS:

FINAL DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 and 61-2-260 (Supp. 1996) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1996) for a contested case hearing. The Petitioner, Elaine G. Inabinett, seeks an off-premise beer and wine permit for Cooter Dam Grocery. The Department made a Motion to be Excused which was granted by my Order dated July 18, 1997. A hearing was held on September 17, 1997, at the Administrative Law Judge Division. Lillie Mae Bodison moved to intervene as a party before the hearing and the Motion was granted, without objection.

The Permit requested by the Petitioner is approved with restrictions.



FINDINGS OF FACT


Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestant, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue.

2. The Petitioner recently opened Cooter Dam Grocery at Route 1, Box 1394A, Round O, South Carolina. She now seeks an off-premise beer and wine permit for her location.

3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 1996) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit.

5. The proposed location is not unreasonably close to any church, school or playground.

6. Cooter Dam Grocery is located on a rural, heavily traveled highway in a predominately residential area. The area is inhabited by many older residents. Additionally, some individuals living in the area have children 12 years old and older. The Respondent objects to the issuance of a permit to the Petitioner for the following reasons:

a) Granting the permit could create a traffic hazard in the area.

b) Granting the permit could result in an increase in criminal activity.

c) The proposed location is not suitable because it is situated in a quiet residential community.

The Respondent's objections center around the impact that "Leon's" night club has had in the area. However, Leon's holds an on-premise beer and wine permit and is located on another roadway more than two miles from the proposed location.

7. Detective Brazell testified that the Sheriff's office objected to the Petitioner receiving an on-premise beer and wine permit. However, his office had no position concerning an off-premise beer and wine permit.

8. The Petitioners contend that they never intended to seek an on-premise beer and wine permit for this location. Furthermore, both Petitioner stipulated at the hearing that this location is suitable for only an off-premise beer and wine permit and is not suitable for an on-premise beer and wine permit.

9. The location has no history of traffic or law enforcement problems. However, because this business is located in a predominately residential area, the location is suitable only for an off-premise permit. Any other use of this location could change the residential character of the neighborhood.





STIPULATION


The Petitioner stipulated at the hearing that she would abide by the following restriction if granted a permit:

The Petitioner will open her store no earlier than 6:00 a.m. and close no later than 9:00 p.m.

CONCLUSIONS OF LAW


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

1. S.C. Code Ann. § 1-23-600 (Supp. 1996) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1996) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1996) sets forth the requirements for the issuance of an off-premise beer and wine permit.

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

7. 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 a protestant objects to the issuance of a permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).

9. The rural residential character of the immediate vicinity of the proposed location is an appropriate consideration in determining whether or not to grant a beer and wine permit. Palmer v. S.C. ABC Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1985); Roche v. S.C. ABC Commission, 263 S.C. 451, 211 S.E.2d 243 (1975).

10. The Petitioner meets the statutory requirements for holding solely an off-premise beer and wine permit at the proposed location.

ORDER


Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the off-premise beer and wine permit application of Elaine G. Inabinett for Cooter Dam Grocery be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue that she will adhere to the above stipulation.

IT IS FURTHER ORDERED that a violation of any of the above restrictions be considered a violation against the permit and license and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue an off-premise beer and wine permit upon the payment of the required fee and cost by the Petitioner.

AND IT IS SO ORDERED.



______________________________________

Ralph King Anderson, III

Administrative Law Judge

November 12, 1997

Columbia, South Carolina


 

 

 

 

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