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 (Supp. 2002) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp.
2002) for a contested case hearing. The Petitioner, Earl Kinley, is the owner of a business, EK’s.
He seeks an on-premise beer and wine permit for the establishment. The Department of Revenue
(Department) filed a Motion to be Excused setting forth that but for the protest received from Mr.
Ulmer, this permit would have been issued. This motion, however, was denied. A hearing was
held on this case on March 7, 2003, at the offices of the Division in Columbia, South Carolina.
Notice of the time, date, place, and subject matter of the hearing was provided to all parties at
least thirty (30) days prior to the hearing date. The parties and protestant were present.
After the hearing, Mr. John J. Pringle, Esquire, filed a Motion for Leave to Intervene on
behalf of Mr. Steven M. Adkins in this matter on April 4, 2003. The grounds for the Motion were
that Mr. Adkins had filed a timely protest with the Department, but had not received any
additional information from the Department, nor the Division. The Department’s Affidavit
attached to its Return to the Motion stated that the initial protest filed by Mr. Adkins was invalid
in that it did not indicate that the Protestant would attend a hearing. The Department sent Mr.
Adkins a form to complete to validate his protest, and required that it be returned within fifteen
days. The Department did not receive the form from Adkins, and therefore did not include his
protest in the transmittal to the Division. Even assuming, arguendo, that the Department had
received the second form, the protest would have been untimely based on the deadline dates in the
newspaper and posted at the location as discussed below. This Motion to Intervene is denied.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing in
this matter and 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 establishment
known as EK’s, located at 119 W. Snider Street, Elloree, South Carolina.
2. Earl Kinley, the owner of EK’s was born on March 24, 1947, and was two weeks
away from being 56 years old at the time of the hearing.
3.Notice of the application was lawfully posted for fifteen days at the location. This
notice stated that the protest deadline was September 11, 2002 at 5:00 PM. Notice of the
application also ran in a newspaper of general circulation in the area. This notice required
protests to be received by the Department of Revenue no later than September 5, 2002.
4. Petitioner has been a legal resident of the State of South Carolina for his entire
life, and has maintained his principal place of abode in the State of South Carolina for the same
length of time.
5. The Petitioner has no criminal record and is of sufficient moral character to
receive a beer and wine permit.
6. The location has not been permitted previously for the on-premises sale of beer
and wine. Petitioner leases the property from Steven Lynn Myers and Harry E. Shuler. Petitioner
intends to have a pool hall which will be open Monday through Saturday from 8:30 AM until 9:00
PM.
7. Mr. Kinley has not had any other permits revoked within the past three (3) years.
Over fifteen years ago, he owned Kinley Club outside of Santee, SC; he is familiar with the rules
of the SC Department of Revenue.
8. The Protestant, Mr. Ulmer, has concerns about the possible negative influence the
presence of a pool hall will have on his cotton gin business. He has a dormitory on his property
near the proposed location for the migrant workers he employs. His business is very dangerous
work, and he runs an alcohol-free and drug-free environment. He feels that the pool hall will be
an unnecessary temptation in the area for his workers. He is further concerned because of foster
children present in the area.
9.Mr. Ulmer’s protest was dated September 13, 2002, and was received by the
Department on September 16, 2002. I find that the protest is untimely, and the permit should be
granted.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Judge Division has jurisdiction in 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. The applicant has complied with all the provisions of S.C. Code Ann. §61-4-520
regarding application conditions. The only remaining issues are whether the protest was timely
under S.C. Code Ann. § 61-4-525 (Supp. 2002), and, if so, the suitability of the location pursuant
to S.C. Code Ann. § 61-4-520(6) and (7).
4.The Notice posted by the Department at the location stated that the protest must
be received by Department of Revenue by 5:00 PM, September 11, 2002. Mr. Ulmer’s protest,
dated September 13, 2002, was not even mailed until after the deadline had passed. S.C. Code
Ann. § 61-4-525 (Supp. 2002) states, “Upon receipt of a timely filed protest, the department shall
determine the protestant’s intent to attend a contested case hearing before the Administrative Law
Judge Division.” (Emphasis added.) In addition, the Department has clarified what has been its
practice by having a regulation passed this year. This regulation states, “A protest concerning the
issuance of a new permit or license must be mailed to the department and postmarked on or
before the date set forth in the Notice of Application published in the newspaper or the Notice
posted at the site.” S.C. Reg. 7-201 (2003). Although this regulation was not codified at the
time of Mr. Ulmer’s protest, it merely clarifies what has been the practice of the Department.
Because Mr. Ulmer’s protest was untimely, the Department should have granted the permit
without requesting a contested case at the Division.
5.The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer and
wine, did not object to the granting of a permit in this case. I find that this location is suitable for
the on-premises sale of beer and wine, since there was not a valid, timely protest filed against the
application. Because of this determination, it is not necessary to address Mr. Ulmer’s concerns
regarding the suitability of the location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for an on-premises beer and wine permit is
GRANTED upon payment of any required fees and costs by the Petitioner to the Department.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premises beer
and wine permit to the Petitioner.
IN ADDITION, IT IS ORDERED that the Motion to Intervene is DENIED.
AND IT IS SO ORDERED.
__________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
June 23, 2003
Columbia, South Carolina |
