ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C.
Code Ann. § 1-23-310, et seq. (1986 & Supp. 1997) on Petitioner's application for an on-premises
beer and wine permit and sale and consumption (minibottle) license for neighborhood tavern/grille
at 9776 Kings Road in Myrtle Beach, South Carolina. Respondent South Carolina Department of
Revenue ("DOR") does not oppose Petitioner's applications and would have issued the permit and
license but for Protestants question on the suitability of the location. After notice to the parties, a
hearing was conducted on October 30, 1998. Protestants failed to appear at the hearing of this
matter, thereby waiving their protest.
Based upon the relevant and probative evidence and the applicable law, I find and conclude
that the Protestants are in default pursuant to ALJD Rule 23 for failure to appear at the October 30,
1998 hearing, and their protest is hereby dismissed. In addition, I find the proposed location is
suitable for the issuance of an on-premises beer and wine permit and minibottle license. The beer
and wine permit and minibottle license are hereby granted.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings of fact:
1. Petitioner, John D. Haney, submitted an application for an on-premises beer and wine permit
and a minibottle license with DOR on May 19, 1998, for the premises located at 9776 Kings Road
in Myrtle Beach, South Carolina.
2. The proposed location operates as a neighborhood tavern/grille, known as "Hano's at the
Plantation."
3. The agency file incorporated into the record at the hearing presents a prima facia case that
Petitioner meets all of the statutory personal fitness requirements. No evidence was presented to the
contrary.
4. The location is suitable for the sale of beer and wine and other alcoholic beverages for on-premises consumption.
5. All parties were given notice of the date, time and place of the hearing.
6. The Protestants received notice of the hearing by certified mail, return receipt requested.
7. Protestants failed to appear at the hearing or communicate with the Court to request a
continuance of the hearing.
8. In its Agency Transmittal, DOR advised this Court that Petitioner appears to have met all
applicable statutory requirements, and but for the protest, the Department would have issued the beer
and wine permit and minibottle license.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code
Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997).
2. The Protestants are in default under ALJD Rule 23 for failure to appear at the April 24, 1998
hearing.
3. Pursuant to ALJD Rule 23, an Administrative Law Judge may dismiss a matter adversely to
a defaulting party.
4. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound
discretion of the body or official to whom the duty of issuing it is committed. . . ." Palmer v. South
Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
5. South Carolina Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the issuance
of a beer and wine permit. Included among the factors for consideration is the suitability of the
location.
6. South Carolina Code Ann. § 61-6-1820 (Supp. 1997) establishes the criteria for the issuance
of a minibottle license. Although the suitability of the proposed location is not listed in this statute
as a condition of licensing, such a consideration is proper. Schudel v. South Carolina ABC Comm'n,
276 S.C. 138, 276 S.E.2d 308 (1981).
7. As trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability
of the proposed business location for a permit to sell beer and wine using broad, but not unbridled,
discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
Although "proper location" is not statutorily defined, broad discretion has been vested in the finder
of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram,
276 S.C. 593, 281 S.E.2d 118 (1981).
8. The determination of suitability of the proposed location is not necessarily a function solely
of geography. 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.2d 335 (1985).
9. While proximity of a residence to a proposed location by itself may be adequate grounds for
denial of a beer and wine permit, there is no minimum distance requirement. See S.C. Code Ann.
§ 61-4-520(7) (Supp. 1997); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653
(1991).
10. The proposed location is suitable for the sale of beer and wine and other alcoholic beverages
for on-premises consumption.
11. The applicant meets all other statutory requirements for the issuance of an on-premises beer
and wine permit and minibottle license.
ORDER
IT IS THEREFORE ORDERED that the protest to Petitioner's application for an on-premises beer and wine permit and minibottle license is dismissed.
IT IS FURTHER ORDERED that Petitioner's application for an on-premises beer and wine
permit and minibottle license for 9776 Kings Road, Myrtle Beach, South Carolina, is granted.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 30, 1998
Columbia, South Carolina |