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Administrative Law Court
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SC Administrative Law Court Decisions

Earl Kinley, d/b/a EK’s vs. DOR

South Carolina Department of Revenue

Earl Kinley, d/b/a EK’s
119 W. Snider St., Elloree, SC

South Carolina Department of Revenue

Earl Kinley, Pro Se for the Petitioner

Carol I. McMahan, Esquire, for the Respondent

J.C. Ulmer, Protestant




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.


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.


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.


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.




Administrative Law Judge

June 23, 2003

Columbia, South Carolina

Brown Bldg.






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