South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Deborah McCorkle, d/b/a OFJ Club vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Deborah McCorkle, d/b/a OFJ Club

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
99-ALJ-17-0594-CC

APPEARANCES:
Deborah McCorkle, Petitioner, pro se

Arlene D. Hand, Esquire, for the Respondent

Willie Yarborough, Protestant, pro se

Lt. Rob Boyd, Fairfield Sheriff's Department, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 1-23-600 et. seq. (Supp. 1998); S.C. Code Ann. § 61-4-520 (Supp. 1998); and S.C. Code Ann. § 61-4-525 (Supp. 1998) following the Petitioner, Deborah McCorkle's, (McCorkle) request for a contested case hearing. McCorkle seeks an on-premises beer and wine permit for the location of 69 Sandy Lane, Winnboro, South Carolina.

The South Carolina Department of Revenue (Department) filed a Motion to be Excused , stating that the location met all statutory requirements and it would have granted the permit but for the public protests of concerned citizens as to the suitability of the location. The Department's Motion was granted by my Order dated January 27, 2000.

A hearing was held on March 28, 2000 at the Division, located at 1205 Pendleton Street, Suite 224, Columbia, South Carolina. Notice of the time, date, place, location, and nature of the hearing was timely sent to all parties, as well as the Protestants.



FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

1. McCorkle seeks an on-premises beer and wine permit for an establishment located at 69 Sandy Lane, Winnsboro, South Carolina in Fairfield County.

2. The parties and the Protestants received notice of the time, date, place, and subject matter of this hearing. Neither Protestant moved to intervene.

3. The applicant was born on March 16, 1950 and was 40 years of age at the time of the hearing.

4. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Herald Independent, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

5. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

6. McCorkle has been a legal resident of the State of South Carolina for over thirty (30) days and has maintained her principle place of abode in the State of South Carolina for over thirty (30) days.

7. McCorkle has never had a beer and wine permit or any other alcoholic beverage license/permit issued to her revoked.

8. McCorkle is of good moral character. She is gainfully employed by Bose and has been since August 9, 1997.

9. The proposed hours of operation for the proposed location are Thursdays from 6:00 p.m. until 10:00 p.m., Fridays from 6:00 p.m. until 2:00 a.m., and Saturdays from 4:00 p.m. until 12:00 midnight.

10. The proposed location was previously permitted for on-premises beer and wine from July 1981 until 1995. The permit during that time was held by Ophelia Johnson, the present owner of the land, who leases the premises to McCorkle. The proposed location was not permitted during the interim.

11. Although McCorkle does not have a criminal record, the proposed location has a long history of public disturbances, including shootings in the parking lot and widespread drug abuse both inside and outside of the premises.

12. During the period from 1995 to the present, when the premises did not have an on-premises beer and wine permit, the quality of life in the surrounding neighborhood increased. No incident reports were filed with the Sheriff's Department during this time period.

13. The proposed location is in a rural area which is almost entirely residential. Many elderly people and children live in the immediate vicinity of the location. It is a family oriented community.



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 has jursidiction in this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998).

2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and weight of any testimony offered.

5. 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 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). Any evidence adverse to the location may be considered. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of other licensed locations in the immediate vicinity, as well as the existence of small children in the area.

6. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

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 alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. S.C. Code Ann. § 61-4-525 (Supp. 1998) provides that a person residing in the county in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if he files a written protest.

9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).

10. In this instance there was specific and credible testimony showing that the granting of a permit to McCorkle would have a detrimental impact on the community and could place undue burdens on local law enforcement.

11. In reaching the above conclusion, I have considered the genuineness of the concerns expressed by neighbors and the Fairfield County Sheriff's Department, and also the good moral character of the Petitioner. Based upon the totality of the facts presented at the hearing and considering the credibility of all the witnesses, however, it is my conclusion that the location is not proper for the grant of an on-premises beer and wine permit.



ORDER

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

ORDERED that the application of Deborah McCorkle for an on-premises beer and wine





permit for the premises located at 69 Sandy Lane, Winnsboro, South Carolina is denied.

AND IT IS SO ORDERED.



____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



March 29, 2000

Columbia, South Carolina


 

 

 

 

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