ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C.
Code Ann. §§ 61-2-90 and 61-2-260 (Supp. 2002) and S. C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2002) for a contested case hearing. The Petitioner seeks an on-premise beer and wine
permit for Star Club. Prior to the hearing into this matter, the Department of Revenue (Department)
made a Motion to be Excused which was granted by my Order dated April 25, 2003. A hearing was
held on June 11, 2003 at the offices of the Division in Columbia, South Carolina.
The Protestant, after receiving timely notice from the Division, did not appear at the hearing
and did not notify the Division that she would not be appearing. The Petitioner was present at the
hearing with counsel. After waiting approximately ten (10) minutes for the Protestant to appear, the
Court commenced this hearing on the record. During the hearing, the Court noted that two
individuals were in attendance who identified themselves as local residents. However, they were not
Protestants of Record in this matter. See S.C. Code Ann. § 61- 4-525 (Supp. 2002). Nonetheless,
counsel for the Petitioner waived his right to object to these individual(s) voicing their opinion(s)
regarding the issuance of this permit although they are not recognized as official Protestants of
Record in this matter.
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, 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, Protestant, and South Carolina Department of Revenue.
2.The Petitioner seeks to operate Star Club as a neighborhood bar with an on-premise
beer and wine permit at 2300 Julius Fielder Street, Cayce, South Carolina. This location has been
previously permitted for the past twenty-five (25) years with a lapse occurring in the past six (6)
months. The Petitioner’s father operated the past business at the location and the applicant intends
to operate this location with his brother. The Petitioner resides next door to the location and has
lived there for quite some time. The hours of operation of Star Club will be 9:00 p.m. to 2:00 a.m.,
Wednesday through Saturday.
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, the Petitioner has not
had a permit or license revoked within the last two years and notice of the application was lawfully
posted both at the location and in a newspaper of general circulation.
4.The Petitioner has no criminal record and is of sufficient moral character to receive
a beer and wine permit.
5.There was no evidence that the proposed location is unreasonably close to any church,
school or playground.
6.The proposed location is 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 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 an on-premise beer and wine permit.
4.Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 281 S.E. 2d 118 (1981).
5.As the trier of fact, the Administrative Law Judge is authorized to determine the
fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine
using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566,
316 S.E. 2d 705 (Ct. App. 1984).
6.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).
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 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.In considering the suitability of a location, it is relevant to consider the previous
history of the location and to determine whether the testimony in opposition to the granting of a
permit 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).
9.The Petitioner meets the statutory requirements for holding an on-premise beer and
wine permit at the proposed location.
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 the Petitioner for Star
Club 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
June 12, 2003
Columbia, South Carolina |
