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Administrative Law Court
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SC Administrative Law Court Decisions

Allen L. Werts, d/b/a "undecided" vs. SCDOR

South Carolina Department of Revenue

Allen L. Werts, d/b/a "undecided"

South Carolina Department of Revenue

Kenneth E. Allen, Esquire for Petitioner

Dana R. Krajack, Esquire, for Respondent SC Department Of Revenue

Michael Bryant, Lynn Sargent




This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-4-520 (Supp. 2005) for an expedited contested case hearing. The Petitioner seeks an on-premises beer and wine permit and liquor by the drink license (denominated as a business minibottle license on the application) for the location at 301 East Main Street, Ninety Six, South Carolina. This matter is presently before the Court because of a protest by several concerned citizens. After notice to the parties and Protestants, a hearing was conducted on May 3, 2006 in Columbia, South Carolina. At the hearing, the parties, their counsel and Protestants were present as indicated. Protestant Joseph Ouzts, who had filed a valid protest with the Department, did not attend the hearing and his protest is deemed abandoned. I find and conclude that the license and permit requested by the Petitioner shall be granted as outlined below.


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

1. The Petitioner seeks an on-premises beer and wine permit and mini-bottle license

for the location located at 301 East Main Street Ninety Six, South Carolina. This location is planned as a Mexican restaurant, Los Cascades.

2. The Respondent, South Carolina Department of Revenue, determined that the

location and the Petitioner met all statutory requirements and would have granted the license and permit but for the protests. At the hearing, the parties stipulated that all statutory and regulatory requirements have been met and that the sole issue to be determined is the suitability of the location based on the Protestants’ concerns.

6. Once renovations are completed, the proposed location will have seating for over 100 people. The restaurant will be open from 11:00 AM to 10 PM, with the possibility of remaining open to 11 PM if demand merits. The Petitioner is a native of the area and has worked to develop and improve his town. He is a business owner and lives approximately 2 miles from the proposed location. Mr. Werts testified that the location will not be a “bar,” but that a limited selection of alcohol will be available to patrons who request it. Mr. Werts introduced into evidence a copy of his food menu, along with the separate one-page menu of alcoholic beverages for those who request it. His manager is experienced in the restaurant business. Mr. Jimanez, the manager, testified that each employee will receive training in preventing underage alcohol sales and in refusing to sell alcohol to patrons who may appear intoxicated.


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

1. The South Carolina Administrative Law Court has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2005).

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) (beer and wine permit); Schudel v. South Carolina ABC Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).

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. 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).

6. 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).

7. S.C. Code Ann. § 61-4-525 (Supp. 2005) 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.

8. 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).

9. The Protestant Michael Bryant is concerned about the nature of the area where this proposed restaurant is located. In particular, he notes that the Edgewood Middle School is nearby, as well as a city park, a recreation complex, a government housing project which is home to several children, a church and several neighborhoods. He testified that there are numerous children in the immediate area at all times of the day. Although he does not object to the presence of the restaurant or to Mr. Werts personally, he does wish that the restaurant would not serve alcohol. In addition, he is concerned about the effect that allowing this restaurant would have on other potential alcohol permits in the area.

10. The Protestant Lynn Sargent testified that her objection is to the sale of alcohol. She is aware that locations in Greenwood County have served alcohol to minors, and she is concerned about the number of children in the area and the increased traffic.

11. After considering all the relevant factors, I find that the restaurant’s location is suitable for the on-premises sale of beer and wine and liquor by the drink license, upon satisfactory completion of construction and final inspections, including DHEC. Although this court appreciates the concerns of the Protestants, and they were both very passionate in their concerns, the location and the Petitioner have met all the statutory and regulatory requirements. In addition, the Petitioner’s efforts to redevelop a depressed area are admirable. His restaurant will be primarily engaged in selling food and should be an economic asset to the town.


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

ORDERED that the South Carolina Department of Revenue grant the Petitioner’s application for an on-premises beer and wine permit and sale and consumption (minibottle) license upon satisfactory completion of all renovations, inspections and payment of any and all necessary fees.




Administrative Law Judge

May 12, 2006

Columbia, South Carolina

Brown Bldg.






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