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 |