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:
Remonica Nixon, d/b/a Paradise Hut vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Remonica Nixon, d/b/a Paradise Hut
632 Smyly Rd., Ruffin, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0016-CC

APPEARANCES:
n/a
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2004), § 61-4-520 (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004), for a contested case hearing. Remonica Nixon, d/b/a Paradise Hut (Petitioner), seeks an on-premise beer and wine permit. Protests to the application were filed with the South Carolina Department of Revenue (Department). Because of the protests, the hearing was required.

A hearing in this matter was held on February 24, 2005, at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and Protestant Jeremy Riley (Protestant) appeared at the hearing. After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s application for an on-premises beer and wine permit should be denied.

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 parties, I make the following Findings of Fact by a preponderance of evidence:

1.The ALC has personal and subject matter jurisdiction.

2.Notice of the time, date, place and subject matter of the hearing was timely given to all parties and Protestants.

3.The Petitioner, Remonica Nixon, d/b/a Paradise Hut, seeks an on-premise beer and wine permit for her location at 632 Smyly Road, Ruffin, South Carolina (location). The location is in a rural area of Colleton County, South Carolina.

4.Remonica Nixon is the owner of Paradise Hut, a sole proprietorship.

5.Petitioner is over the age of twenty-one (21). She has been a legal resident of the State of South Carolina since 1994 and has maintained her principal place of abode in the State of South Carolina for the same length of time. She is of good moral character and has never held a license or permit to sell beer, wine or liquor.

6.Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

7.The location currently operates Monday through Thursday from 5:00 p.m. to 10:00 p.m. and from 5:00 p.m. until midnight on Friday and Saturday. Petitioner sells items such as cigarettes, sodas, and snacks, and she occasionally sells food items such as sandwiches, hotdogs, and french fries. Petitioner testified that if the permit is granted, she will not conduct her business any differently from the way it is currently conducted.

8.There are two (2) pool tables, a jukebox, and a television inside the location. In a separate room there are tables, chairs, and a stage with room for a D.J. A kitchen is located to the back of the pool table area. The application states that the location will operate as a bar and lounge.

9.Petitioner testified that they sometimes have dances and parties with a D.J., but not every weekend.

10.Petitioner is assisted in the operation of the location by her husband, Mr. Peter Parker Nixon. Mr. Nixon is present at the location every day and performs the day-to-day operations at the location. He also does the cooking of any food served. Mr. Nixon is of sufficient moral character.

11.Petitioner has never operated or worked in an establishment where alcoholic beverages were served. However, Mr. Nixon assisted his sister in the operation of an establishment that sold beer and wine for a brief period of time.

12.Petitioner is a Licensed Practical Nurse Supervisor at Oakwood HealthCare Center in Walterboro, South Carolina, where she works from 7:00 a.m. to 7:00 p.m. three days one week and four days the next week. Mr. Nixon works as a heavy equipment operator for the South Carolina Department of Transportation from 7:00 a.m. to 3:00 p.m. Monday through Friday. Petitioner is present at the location on those nights she doesn’t work at Oakwood HealthCare Center. Mr. Nixon is present at the location every day during its hours of operation. Petitioner and her husband live approximately thirteen (13) miles from the location.

13.There are several street lights outside the location. There is also a gravel parking lot with space for approximately fifteen (15) vehicles.

14.Ruffin Middle School is located approximately one quarter (¼) of a mile from the location. It has approximately three hundred (300) children in grades six (6) through eight (8). Activities are held at the school approximately twice a month. Buckhead United Methodist Church is located next to the middle school and there is a Community Center across the street from the church. There are basketball courts next to the Community Center where children sometimes play. There are also residences near the location, with the closest residence being approximately three hundred and fifty (350) feet from the location.

15.There is a car wash approximately two hundred (200) feet from the location that sells beer and wine. However, Mr. Nixon testified that the car wash is usually only open on Thursday nights. There are also two other establishments that sell beer and wine near the location. Diane’s, which is approximately one and a quarter (1¼) miles from the location, sells beer and wine for on-premise consumption. Approximately one and a half (1½) miles from the location, is a gas station called Buddy’s that sells beer and wine.

16.Protestant Jeremy Riley testified at the hearing, questioning the suitability of the location and citing concerns for his safety and that of his family and other children in the area. Mr. Riley lives approximately one quarter of a mile (¼) from the location on Serpentine Lane and has two young children that live with him.

17.The Town of Ruffin does not have its own police department. Therefore, any calls for service would be handled by the Colleton County Sheriff’s Department, which is located in Walterboro approximately fifteen (15) to twenty (20) minutes from the location.

CONCLUSIONS OF LAW

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

1.S.C. Code Ann. § 1-23-600 (Supp. 2004) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2.S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3.S.C. Code Ann. § 61-4-520 (Supp. 2004) sets forth the requirements for the issuance of a beer and wine permit.

4.The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5.The weight and credibility assigned to evidence presented at the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

6.Although "proper location" is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates any adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant to consider the previous history of the location. 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). Furthermore, 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, et al., 261 S.C. 168, 198 S.E.2d 801 (1973).

7.Unless there is 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).

8.Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the state’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

9.Although the location is in a rural area in Colleton County, there is a middle school and a church in close proximity to the location, as well as several residences. There are also several other locations in close proximity to this location that sell beer and wine for on and off premise consumption. Furthermore, all calls for service would be handled by the Colleton County Sheriff’s Department in Walterboro, which is approximately fifteen (15) to twenty (20) minutes away. Accordingly, given the proximity of the middle school, church, and nearby residences and the concern for safety of residents in the neighborhood, I find that the issuance of an on-premise beer and wine permit would have an adverse impact on the community and therefore find that the location is not suitable.

ORDER

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

ORDERED that the application for an on-premises beer and wine permit of Remonica D. Nixon, d/b/a Paradise Hut, 632 Smyly Road, Ruffin, South Carolina is DENIED.

AND IT IS SO ORDERED.

____________________________

Marvin F. Kittrell

Chief Administrative Law Judge

March 1, 2005

Columbia, South Carolina


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