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Administrative Law Court
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SC Administrative Law Court Decisions

David Smoak & William Griffiths, d/b/a The Original Talking Horse vs. SCDOR

South Carolina Department of Revenue

David Smoak & William Griffiths, d/b/a The Original Talking Horse
4405 Cannon Bridge Road, Cope, SC

South Carolina Department of Revenue

David Smoak and William Griffiths, pro se, Petitioners

Dana R. Krajack, Esquire, for Respondent

Kathy Metts, Clinton Metts, Jimmy Sanders, Pam Sanders




This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-2-90 (Supp. 2003) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2003) for a contested case hearing. The Petitioners, David Smoak and William Griffiths, are the owners of a convenience store and restaurant, The Original Talking Horse. They seek an on- and off-premises beer and wine permit for the establishment. The Department of Revenue (Department) stated that but for the protests received, this permit would have been issued. A hearing on the merits of this case was held on January 10, 2005, at the offices of the Court in Columbia, South Carolina. Notice of the time, date, place, and subject matter of the hearing was provided to all parties and protestants at least thirty (30) days prior to the hearing date. The parties and protestants were present as indicated above.


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

1. The Petitioners seek an on- and off-premises beer and wine permit for the establishment known as The Original Talking Horse, located at 4405 Cannon Bridge Road, Cope, South Carolina.

1.2Notice of the application was lawfully posted for fifteen days at the location, and

notice of the application also ran in a newspaper of general circulation in the area.

3. Petitioners are legal residents of the State of South Carolina.

4. The Petitioners have no criminal records and are of sufficient moral character to

receive a beer and wine permit.

5. The location has been permitted previously for the sale of beer and wine by Mr. Smoak in 1998. He had no violations at the location. Petitioners run a family oriented store and restaurant. The store portion of the location can be closed off from the restaurant portion so that patrons of the restaurant may leave by an exterior door without having to go through the store. The proposed hours are 7:00AM to 8 PM Monday through Saturday and 9 AM to 5 PM on Sunday. There are approximately 75 parking spaces at the location and seating for approximately 15 to 20 people. In addition, the Petitioners plan to offer the area in the back of the store for rent and for cookouts. The convenience store portion of the location sells hunting and fishing supplies, groceries and take-out food.

6. The Protestants all feel that the store and restaurant do not need to sell beer and wine for on-premises consumption; they stated that they have no objection to the off-premises sale of alcohol, but do not feel that the on-premises sale is necessary. They are concerned for the safety of the people in their small community, and the fact that the proposed location is between the volunteer fire station and the homes of twenty-five of the twenty-six responders. The fire chief, Mr. Metts, and a volunteer fire firefighter, Mrs. Metts, are concerned about the safety of the responders as well as the safety of the patrons of the Talking Horse.


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

1. The South Carolina Administrative Law Court has jurisdiction in this matter pursuant to S.C. Code Ann. §61-2-260 (Supp. 2003).

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. The applicant has complied with all the provisions of S.C. Code Ann. §61-4-520

regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61-4-520(6) and (7).

4.Licenses and permits issued by the State for the sale of beer, wine, and liquor are

not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

5.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).

6.As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a beer and wine permit using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). It is also the fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

7.Although “proper location” is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a 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. The proximity of a location to a church, school or residences is a proper ground by itself upon which the location may be found to be unsuitable and a license denied. Byers v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8.In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license 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, 261 S.C. 168, 198 S.E.2d 801 (1973).

9.Much of the Protestants’ arguments against the granting of the license sought herein is that they do not want this type of business, i.e., a business that serves beer for on-premises consumption, in their community. However, an aversion to the sale and consumption of alcoholic beverages is not within the statutory grounds for denial of an application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (1981).

10. The Department of Revenue, which is the governmental body charged with

regulating and enforcing violations concerning permits and licenses involving the sale of beer and wine, did not object to the granting of a permit in this case. I find that this location is suitable for the on- and off-premises sale of beer and wine.

12.Although the concerns of the Protestants are understandable, and the witnesses

exhibited great credibility in their opposition to the consumption of beer at this location and the possible effects on the community, I find that the central concerns are general moral opposition, and not directed to any specific problems with Petitioners’ location. I find that this

location shall be permitted.


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

ORDERED that the Petitioners’ application for an on- and off-premises beer and wine permit is GRANTED upon payment of any required fees and costs by the Petitioners to the Department.

IT IS FURTHER ORDERED that the Department of Revenue issue an on- and off-premises beer and wine permit to the Petitioners.




Administrative Law Judge

January 12, 2005

Columbia, South Carolina

Brown Bldg.






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