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