ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division upon the Petitioner’s
request for a contested case hearing. Laurna Siegfried seeks an on-premise beer and wine permit for
the above-captioned establishment. A hearing was held in this matter on May 21, 2003 at the offices
of the Administrative Law Judge Division.
MOTION TO DISMISS
At the beginning of the hearing, the Petitioner made a Motion to Dismiss this case because
the Protestants did not timely submit their protest. Prior to the hearing, the Petitioner and the
Department of Revenue (Department) stipulated to certain facts regarding and relevant to this
motion.
Stipulation of Facts
The Notice of Application published by Laurna Siegfried in the Spartanburg Herald Journal
on February 22, 2003, March 1, 2003 and March 8, 2003 is the Notice of Application approved for
all applicants by the Department and is included in the Department’s application packet (last revised
November 7, 2001). The Notice, as published, provides that “written protests must be received by
the S.C. Department of Revenue no later than March 10, 2003.”
The of Application posted by the State Law Enforcement Division at the proposed location
on March 3, 2003 is the Notice of Application approved by the Department and provided that
protests to the application must be received by the Department no later than March 18, 2003.
The protests of Roland, Jeanne and Wesley Pittman (all of the same address) were postmarked
March 18, 2003 and were received by the Department on March 19, 2003.
Finally, the parties stipulated that it has been the routine practice of the Department to issue
permits/licenses on the day following the last day for receiving protests provided for in the published
and posted Notices provided that no protests were received by the deadline and all other
administrative requirements have been met.
Discussion
S.C. Code Ann. § 61-4-525 (Supp. 2002) provides that a person who either resides in the
county in which a beer and wine permit is requested or lives within five miles of the location may
protest the issuance of a permit. Such a protest must be “timely filed.” Id. The Department issued
a Revenue Ruling published in 1998 interpreting “timely filed” to mean that the protest must be
“postmarked” by the date given in the posted Notice and advertisement. However, the “Application
For Beer, Wine, and/or Liquor” form, which was last revised in November 7, 2001, advises that the
required newspaper advertisements set forth that the protest must be “received” by the date given in
the posted Notice and advertisement. Here, the Department did not “receive” the protests by the date
set forth by the newspaper advertisement and SLED Notice. Nevertheless, the Protestants did place
their protest in the mail as shown by the “postmark”within those time periods designated in the posted
Notice and advertisement.
The Petitioner contends that the Revenue Ruling was repealed by implication because of
actions by the Department’s staff in setting forth that a protest must be “received” by those
specifically designated dates. The Department contends that the Revenue Ruling has not been
withdrawn or modified, and therefore there has been no repeal of the Department’s policy. The
Department also argues that the Ruling’s interpretation of what constitutes “timely filing” is
reasonable because all other tax filings are deemed filed based upon the postmarked date.
“[W]hile the ALJD is an independent entity, it still functions as an arm of the agency for
purposes of according the agency deference in interpretation. ‘[T]he construction of a statute by the
agency charged with its administration will be accorded the most respectful consideration and will
not be overruled absent compelling reasons.’” Dorman v. Dep’t of Health and Envtl. Control, 350
S.C. 159, 167, 565 S.E.2d 119, 124 (Ct. App. 2002) (quoting, in part, Brown v. S.C. Dep't of Health
& Envtl. Control, 348 S.C. 507, 560 S.E.2d 410, 413 (2002)). Consequently, the Department
established an interpretation of its statutes through its Revenue Ruling and is entitled to most
respectful consideration. However, individual members of the Department’s staff do not set policy
for the Department and thus a staff member’s treatment of what is “timely” in an application protest
is not entitled to deference. I, therefore, find that the Department’s policy has not been repealed.
Additionally, there must be some discernable time for a protest to be untimely so that applicants can
make an informed decision as to when to begin their business. I find that the Revenue Ruling is a
reasonable interpretation of Section 61-4-525 in this regard. Accordingly, I find that dismissal of this
case based upon an untimely protest would be improper. This is especially true in light of South
Carolina’s policy of favoring the disposition of issues on their merits rather than on technicalities.
Mictronics, Inc. v. South Carolina Department of Revenue, 345 S.C. 506, 548 S.E.2d 223 (2001).
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 Petitioner and the
Protestant(s), I make the following Findings of Fact by a preponderance of evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Department, and the Protestant(s).
2.Laurna Siegfried, d/b/a Taylor’s Rack & Company (Taylor’s Rack), seeks an on-premise beer and wine permit for its location at 9070 Hwy. 11, Campobello, Spartanburg County,
South Carolina. Taylor’s Rack is a family-operated gameroom-type establishment that will provide
entertainment with pool tables, racing games and video games. Taylor’s Rack may serve about thirty
(30) patrons at any given time. If granted the permit, they would continue to be open Monday
through Saturday, 4:00 p.m. to 2:00 a.m. The location itself has been previously permitted and has
adequate parking and lighting around the location.
3.The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2002) concerning
the residency and age of the Petitioner are properly established. Furthermore, Ms. Siegfried has not
had a permit or license revoked within the last two years and public Notice of the application was
lawfully posted both at the location and in a newspaper of general circulation.
4.Ms. Siegfried has no criminal record and is of sufficient moral character to receive a
beer and wine permit. Additionally, the location has not had any complaints from local law
enforcement in the past.
5.The proposed location is not unreasonably close to any church, school or playground.
6. The Protestant contends that this location is not suitable because of its proximity to
Grace Christian School, where he is the principal. Grace Christian School is located on a frontage
road approximately two miles from the proposed location.
The school offers instruction to
approximately one hundred students in grades K - 12. The Protestant believes that the proposed
location will cause an increase in traffic because individuals traveling to his school will have to pass
by the location. With patrons coming to and from this proposed location, he contends that traffic
jams and accidents will result at the intersection of Highway 11 and the frontage road where Grace
Christian School is located. He is ultimately concerned about traffic safety as a direct result of the
increased traffic from this location.
Along with his concerns regarding traffic safety, the Protestant also contends that this location
is not in keeping with the community and its values, and that this location will have a negative impact
on the community as a whole.
7.The Protestant’s evidence did not establish a change in the community since the
location was last permitted or that the proposed location would be detrimental to the existing
community values. Furthermore, though he testified that traffic has increased in the area, his
anecdotal testimony did not establish that the proposed location would create a hazardous traffic
condition. Therefore, I find the proposed location to be suitable for an on-premise beer and wine
permit.
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 (1986 & Supp. 2002) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the Administrative Law Judge
Division the responsibilities to determine contested matters governing alcoholic beverages, beer and
wine.
3.S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth the requirements for the issuance
of a beer and wine permit.
4.Although "proper location" is not statutorily defined, the Administrative Law Judge
Division 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 operations 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 the 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. 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., supra. (1973).
5.“A liquor license or permit may properly be 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).
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 by itself to deny the application. See 45 Am. Jur. 2d
Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors §119 (1981). I conclude that
this proposed location would not adversely impact this community.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premise beer and wine permit application of Laurna Siegfried d/b/a
Taylor’s Rack & Company, be granted upon the Petitioner’s payment of the required fees and costs.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson III
Administrative Law Judge
May 30, 2003
Columbia, South Carolina |
