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Administrative Law Court
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SC Administrative Law Court Decisions

USC Hotel Associates, LLC vs. SCDOR

South Carolina Department of Revenue

USC Hotel Associates, LLC

South Carolina Department of Revenue

For the Petitioner: Kenneth E. Allen, Esquire

For the Department of Revenue: Carol I. McMahan, Esquire

For the Protestant: Pro Se




This matter comes before the Administrative Law Court (ALC) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2004), S.C. Code Ann. § 61-4-520 (Supp. 2004), S.C. Code Ann. § 61-6-1820 (Supp. 2004) and the Administrative Procedures Act (APA), S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 2005), for a contested case hearing. Petitioner seeks an on-premise beer and wine permit and a sale and consumption license for the [Inn at USC] (USC Hotel). The South Carolina Department of Revenue (Department) would have granted the permit and license but for a protest filed by a local resident. Notice of the time, date, place and subject matter of the hearing was given to Petitioner, the Protestant, and Respondent. A hearing was held on January 26, 2006, at the offices of the ALC in Columbia, South Carolina.


Having observed the witnesses and exhibits presented at the hearing and taking into consideration the burden of persuasion and the credibility of the witnesses, I make the following findings of fact by a preponderance of evidence:

1. Petitioner seeks an on-premise beer and wine permit and a sale and consumption license for the USC Hotel, located on the 1600 block of Pendleton Street in Columbia, South Carolina.

2. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2004) and S.C. Code Ann. § 61-6-1820 (Supp. 2004) concerning the residency and age of the applicant are properly established. Furthermore, E.L. Pooser, Jr., USC Hotel's principal, has not had a permit or license revoked within the last two (2) years and is of sufficient moral character to receive a beer and wine permit and a sale and consumption license. Public notice of the application was also lawfully posted both at the location and in a newspaper of general circulation.

3. The proposed location is not within three hundred (300) feet of any church or playground. The USC Hotel, however, is located within 300 feet of the University of South Carolina’s Moore School of Business.

4. The Protestant objects to the location receiving a permit and license because of:

a. Its proximity to the Moore School of Business;

b. The address shown upon the tax records and the application are dissimilar;

c. The Petitioner misled him that only beer and wine would be sold at the location; and

d. The location was improperly approved by the Department because it has a “vested interest” in approving the permit because of the revenue generated by the permit and license.[1]

Though the address of the location may be dissimilar to the address on some tax map(s), the USC Hotel is clearly on the 1600 block of Pendleton Street. In fact, it occupies most if not all of that city block. Additionally, in a letter to the Protestant, Mr. Pooser set forth that the USC Hotel is not seeking to sell beer, wine or alcohol but it is only requesting a “license to have the ability to serve alcoholic beverages at no cost during special functions.”

I do not find that the site of the proposed location was misidentified or that the Protestant has been misled that only beer and wine would be sold at the location. Furthermore, other than concerns raised regarding the proximity of the USC Hotel to the Moore School of Business, no direct evidence was introduced to substantiate that granting the permit and/or license to the USC Hotel would change the integrity of the vicinity or have an overall adverse impact on the community. There also was no evidence of an existing criminal problem that could be exacerbated by granting the permit. Therefore, I find that Petitioner’s proposed location is suitable for an on-premise beer and wine permit and a sale and consumption license.


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

1. S.C. Code Ann. § 1-23-600 (Rev. 2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the APA. Additionally, S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the ALC the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2. In a contested case hearing under the APA, the ALC acts as the trier of fact. See Brown v. S.C. Dep’t of Health & Envtl. Control, 348 S.C. 507, 512, 560 S.E.2d 410, 413 (2002); Reliance Ins. Co. v. Smith, 327 S.C. 528, 534, 489 S.E.2d 674, 677 (Ct. App. 1997).

3. S.C. Code Ann. § 61-4-520 (Supp. 2004) sets forth the requirements for the issuance of a beer and wine permit. Among other requirements, Section 61-4-520 dictates that the location where the applicant proposes to sell beer or wine must be a proper one.

4. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2004) are met. That section requires that a sale and consumption license be granted only to a bonafide business engaged primarily and substantially in either the business of preparing and serving meals or furnishing lodging. Furthermore, if the applicant is a corporation or association, then not only must the principals be of good moral character but the business must also have a reputation for peace and good order.

5. Section 61-6-1820 also provides that a sale and consumption license shall not be granted unless the proposed location meets the minimum distance requirements from churches, schools, and playgrounds as set forth in S.C. Code Ann. § 61-6-120 (Supp. 2004).

6. Although "proper location" is not statutorily defined, the ALC is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595, 281 S.E.2d 118, 120 (1981). The determination of suitability of location is not necessarily a function solely of geography. Kearney v. Allen, 287 S.C. 324, 326-327, 338 S.E.2d 335, 337 (1985). 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. Id. at 327, 338 S.E.2d at 337. In determining the suitability of a location, it is proper for this Court, as the trier of fact, to consider any evidence that demonstrates the adverse effect the proposed location will have on the community. See Palmer v. S.C. Alcohol Beverage Control Comm'n, 282 S.C. 246, 249, 317 S.E.2d 476, 478 (Ct. App. 1984). It is also relevant to consider the previous history of the location. See 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. See Smith v. Pratt, supra; Taylor v. Lewis, supra.

“A liquor license or permit may also be properly refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). Nevertheless, 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).

7. The Protestant contends that the USC Hotel is unsuitable for an on-premise beer and wine permit or a sale and consumption license because of its proximity to the University of South Carolina. S.C. Code Ann. § 61-4-520(7) (Supp. 2004) provides that the ALC “may consider, among other factors, as indications of unsuitable location, the proximity [of the proposed location] to . . . schools” in determining whether to grant a retail beer and wine permit. I do not find, however, that the USC Hotel is unsuitable for a beer and wine permit because of its proximity to the University of South Carolina. Nevertheless, the criterion in instances in which an applicant seeks a license to sell alcoholic products is more restrictive. In those instances, a license shall not be granted “if the place of business is within three hundred feet of any . . . school.” S.C. Code Ann. § 61-6-120 (A) (Supp. 2004). “School” is defined in Section 61-6-120 (A) as “an establishment, other than a private dwelling where the usual processes of education are usually conducted.”

The Protestant asserts that the University of South Carolina is a school under Section 61-6-120 (A). The Department asserts that the word “school” does not include colleges or universities. It further argues that that interpretation has been the longstanding interpretation of the Department and the former ABC Commission following an Attorney General Opinion in October 18, 1976, propounding that stance. See 1975-76 Op. S.C. Att’y Gen. No. 4494 at 351. Accordingly, the Department asserts that its interpretation that a school does not include a university is entitled to deference.

“The construction of a statute by an agency charged with its administration will be accorded most respectful consideration and will not be overruled absent compelling reasons.” Jasper County Tax Assessor v. Westvaco Corp., 305 S.C. 346, 348, 409 S.E.2d 333, 334 (1991). Nevertheless, the deference given to those charged with the duty of executing a statute is restricted to cases in which the meaning of the statute is uncertain. Glens Falls Ins. Co. v. City of Columbia, 242 S.C. 237, 242, 130 S.E. 2d 573, 576 (1963). In other words, if there is no uncertainty, there is no reason for resorting to the rules of statutory construction and interpretation.

Here, the primary issue is whether the definition of “school” is ambiguous concerning its application to universities or colleges. Section 61-6-120 (A) provides that a school is an establishment where the “usual process” of education occurs. Usual is defined as “accordant with usage, custom, or habit” and also as “found in ordinary practice or in the ordinary course of events.” Merriam-Webster Online (2005), <>. Though a college education clearly appears to be an educational process, it is arguably not an ordinary custom but is rather an elective process. Following this reasoning a secretarial school or driving school would not be considered a school under the statute.[2] Moreover, the South Carolina Code of Laws contains numerous instances in which the term school is distinguished from a college or university. E.g., S.C. Code Ann § 3-9-10 (a) (3) (1986); S.C. Code Ann § 8-1-115 (A) (Supp. 2004); S.C. Code Ann § 16-3-510 (Supp. 2004). Therefore, I find there is some ambiguity in the meaning of “the usual processes of education.” Furthermore, there is some logic in the Department’s construction. Accordingly, I do not find compelling reasons to overturn the Department’s construction.


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

ORDERED that the application for an on-premise beer and wine permit and restaurant sale and consumption license of USC Hotel Associates, LLC be granted, upon payment of the proper fees and costs



Ralph King Anderson III

Administrative Law Judge

February 9, 2006

Columbia, South Carolina

[1] Other than his conjecture as to a “vested interest,” the Protestant did not present any evidence of such an interest by the Department. Furthermore, to prove the denial of due process, a party must show that it has been substantially prejudiced by the administrative process. Palmetto Alliance, Inc. v. S.C. Public Service Comm’n, 282 S.C. 430, 435, 319 S.E.2d 695, 698 (1984). In Ross v. Med. Univ. of South Carolina, 328 S.C. 51, 68, 492 S.E.2d 62, 71 (1997), the South Carolina Supreme Court held that:

Article I, § 22 [of the South Carolina Constitution] requires an administrative agency [to] provide notice and an opportunity to be heard, but does not require notice and an opportunity to be heard at each level of the administrative process. It mandates notice and opportunity to be heard at some point before the agency makes its final decision.

The ALC, as part of the executive branch of South Carolina government, provides notice and opportunity to be heard before the final administrative decision. See S.C. Code Ann. §§ 1-23-500 et seq. In this instance, the Protestant was clearly provided notice of the Department’s decision to approve the permit and license, and exercised his right to be heard by seeking a contested case hearing before this Court. Therefore, this issue will not be addressed further.

[2] School is defined as a college or university. Merriam-Webster Online (2005), <>. Nevertheless, it is also defined as “an establishment offering specialized instruction <a secretarial school> <driving schools> .” Id. “All rules of statutory construction are subservient to the one that legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in the light of the intended purpose of the statute.” McClanahan v. Richland County Council, 350 S.C. 433, 438, 567 S.E.2d 240, 242 (2002). It simply does not appear that the legislature intended that a location cannot be licensed if it is within 300 or 500 feet of a professional school.

Brown Bldg.






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