South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

Carmen L. Davis, d/b/a Toppers No Limit vs. DOR

South Carolina Department of Revenue

Carmen L. Davis, d/b/a Toppers No Limit
757 A Pinckey Road, Chester, SC

South Carolina Department of Revenue

Carmen L. Davis, Pro Se, for Petitioner

Carol I. McMahan, Esquire, for Respondent

Protestant: Tammy Roberts




This matter comes before the Administrative Law Judge Division (Division) upon the request of the Petitioner Carmen L. Davis, d/b/a Toppers No Limit for a contested case hearing pursuant to S.C. Code Ann. §61-4-520 et seq. (Supp. 2002). The Petitioner seeks an on-premises beer and wine permit for the location at 757 A Pinckney Road, Chester, South Carolina. This matter is presently before the Division because of a protest by a concerned citizen concerning the suitability of the location. The Respondent moved to be excused since but for the protest it would have issued the permit and license. This motion was denied. After notice to all parties and the Protestant, a hearing was conducted on May 6, 2003, at the Division in Columbia, South Carolina. At the hearing, the parties and Protestant were present as indicated above.


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 for the location known

as Toppers No Limit, located at 757 A Pinckney Road, Chester, South Carolina.

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

location and the Petitioner met all statutory requirements at the time of the application and would have granted the permit but for the protest as to suitability of the location. At trial, evidence was presented by the Petitioner that she intended to have Mr. William King assist her in operating the club. Mr. King testified that he would not have an ownership interest in the club, but would help out as needed. Based on this evidence, the Department moved to hold any decision in abeyance for thirty days to give the Department time to conduct a background investigation of Mr. King.

3. The location is in an area of Chester that is a mixture of residential and

commercial establishments. The Petitioner intends to have a pool room at the proposed location with a DJ in the evenings. She has started to construct a fence to define the parking area behind the proposed location, but stopped when the protest was received. She has indicated that she will complete the fence if the license is granted. The Protestant contends that part of the fence is on her property.

4. There are currently other facilities in the area that serve alcohol. Testimony was

presented that this location has been licensed in the past for alcohol sales, but the Respondent did not have a record of that license.

5. The Protestant lives behind the proposed location. She fears violence will occur

at the game room and spill over into her community. She has had problems in the past with noise and litter from the location. She is concerned about the proximity of the location to the nearby church, her mother’s beauty salon, and the increased traffic in the area due to the club.

6. The Petitioner testified that Mr. William King will assist her in running the

club if the license is approved. Mr. King has held temporary beer and wine permits from the Department of Revenue in the past. He testified that he has not been arrested and that he is a person of good moral character. Because the application did not list Mr. King as either as a manager or employee of Toppers No Limit, the Respondent requested that the record be held open for an additional thirty days so that the Department of Revenue could obtain a SLED check on Mr. King. The Court granted this request.

7. The applicant is of good moral character. The State Law Enforcement Division’s

criminal background investigation revealed no criminal violations for the applicant. However, the additional investigation of Mr. King, conducted after the hearing, revealed that he has had numerous arrests in Chester county from 1992 through 2001, including several counts of Breach of Trust with Fraudulent Intent, several counts of passing fraudulent checks, two counts of petit larceny, and one count of possession of drug paraphernalia. Based on this information, the Department of Revenue, by letter received by this Court on June 10, 2003, revised its determination, and now opposes the Petitioner’s application, stating that Mr. King is not of “good moral character” as required by S.C. Code Ann. § 61-4-520 (Supp 2002). The fact that Mr. King testified at the hearing that he had not been arrested serves to underscore that determination.

8. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the

State of South Carolina, and has maintained her principal residence in the State for at least thirty days prior to the application.

9. Notice of the application appeared in The Chester News and Reporter, a

newspaper of general circulation in the area of the proposed location, once a week for three consecutive weeks and notice was posted at the proposed location for fifteen days.

10.Mr. Eli “Butch” Harrison was originally listed on the Petitioner’s application as an

employee of the club, but Petitioner testified that he would not be employed after the SLED check by the Respondent revealed Mr. Harrison has a criminal record.


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

1.The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002).

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).

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.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 on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered. Byers v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of other licensed locations in the immediate vicinity, as well as the existence of small children in the area.

6.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).

7.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). In this case, however, the statutory criteria are not satisfied. The Petitioner has attempted to employ two different men, Mr. King and Mr. Harrison, to assist her in running this club. In each case, it has been determined that the employee has a criminal record and is not of good moral character as required by S.C. Code Ann. § 61-4-520 (Supp 2002). In addition, Mr. King’s unwillingness to admit that he had in fact been arrested leads to the conclusion that his testimony is not credible.

8.S.C. Code Ann. § 61-4-525 (Supp. 2002) 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.

9.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).

10.After considering all the relevant factors, I find that while the location may be suitable for the on-premises sale of beer and wine, that the inability of the Petitioner to employ people of good moral character to assist her with this club, necessitates a denial.


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

ORDERED that the South Carolina Department of Revenue deny the Petitioner’s application for an on-premises beer and wine permit.




Administrative Law Judge

June 11, 2003

Columbia, SC

Brown Bldg.






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