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:
Joanna Cavalcante, Cavalcante & Cavalcante, Inc., d/b/a Matthew's Discount Beer & Spirits vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Joanna Cavalcante, Cavalcante & Cavalcante, Inc., d/b/a Matthew's Discount Beer & Spirits

Respondents:
South Carolina Department of Revenue, Vincent A. Holloman
 
DOCKET NUMBER:
98-ALJ-17-0028-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For the Respondent Holloman: No Appearance
 

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 (Supp. 1996) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1996) for a contested case hearing. The Petitioner, Joanna Cavalcante, seeks an off-premise beer and wine permit and a retail liquor license for Matthew's Discount Beer & Spirits. The Department of Revenue made a Motion to be Excused which was granted by my Order dated January 19, 1998. Afterward, Protestant Vincent A. Hollaman made a Motion to Intervene which was granted on March 23, 1998. A hearing was held on March 30, 1998, at the Administrative Law Judge Division. However, after receiving proper notice of the hearing, neither any counsel for the Respondent Holloman or Protestants nor the Respondent or Protestant themselves appeared at the designated time and place.

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 seeks an off-premise beer and wine permit for Matthew's Discount Beer & Spirits at 2192 Whiskey Road, Aiken, South Carolina. The Petitioner also seeks a retail liquor license at the same location.

3. The qualifications set forth in S. C. Code Ann. §61-4-520 and §61-6-110 (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. The Petitioner is also of sufficient reputation to receive a retail liquor license.

5. The Petitioner's business is located in a commercial area of Aiken County. Additionally, the proposed location is not within 500 feet or unreasonably close to any church, school or playground.

6. The previous business at the proposed location, the Sugar Shack, held an on-premise beer and wine permit. Furthermore, the Aiken Bowling Alley and Big Easy Cafe are both within 100 feet of the location.

7. The Petitioner's proposed location does not yet structurally comply with S.C. Code Ann. § 61-6-1510 (Supp. 1997).

8. The proposed location is suitable for the off-premise sale of beer and wine and a retail liquor license upon meeting the structural requirements of S.C. Code Ann. § 61-6-1510 (Supp. 1997).

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 a beer and wine permit.

4. S.C. Code Ann. §§ 61-6-110, et seq. (Supp. 1996) sets forth the requirements for

determining eligibility for a retail liquor license.

5. S.C. Code Ann. § 61-6-1510 provides that "[a] retail dealer must maintain a separate store or place of business with not more than two means of public ingress or egress which must be on the front or the same side of the building, except that the doors may be located at the corner of two adjacent sides of the building."

6. 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).

7. 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 or license using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

8. 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).

9. 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).

10. 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).

11. The Petitioner meets the statutory requirements for holding an off-premise beer and wine permit and a retail liquor license 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 and the retail liquor license applications of Joanna Cavalcante for Matthew's Discount Beer & Spirits be granted upon the Petitioner's compliance with the structural requirements of section § 61-6-1510 and the payment of the required fees and costs.

AND IT IS SO ORDERED.

________________________________

Ralph King Anderson, III

Administrative Law Judge

April 6, 1998

Columbia, South Carolina


 

 

 

 

Copyright © 2025 South Carolina Administrative Law Court