South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Bry-Dan, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Bry-Dan, Inc., d/b/a Rivertown Roadhouse, 3990 Highway 378, Conway, S.C. 29527

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
00-ALJ-17-0350-CC

APPEARANCES:
Bryan Stamey and Daniel Kelly, pro se for the Petitioner

Michael K. Kendree, Esquire, for the Respondent

David Gundling, Esquire, for the Protestants
 

ORDERS:

ORDER OF DISMISSAL

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. § 61-4-525 (Supp. 1999); S.C. Code Ann. § 61-6-185 (Supp. 1999); S.C. Code Ann. § 1-23-600 et seq., (Supp. 1999); and S.C. Code Ann. Regs. 7-96 (1976) following the Petitioner's request for a contested case hearing. The Respondent, South Carolina Department of Revenue, (Department) denied the Respondent's application for an on-premises beer and wine permit and a sale and consumption (minibottle) license because of public protests by concerned citizens regarding the suitability of the location.

The Department filed a Motion to be Excused, stating that the proposed location met all statutory requirements for an on-premises beer and wine permit and a sale and consumption (minibottle) license and it would have granted the permit and license but for the public protests by the concerned citizens. The Court did not grant this Motion.

A hearing was held in this matter on September 19, 2000 at the Division, located at 1205 Pendleton Street, Suite 224, Columbia, South Carolina. Notice of the time, date, place, location and subject matter of the hearing was timely sent to all parties, as well as the Protestants.



FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

1. The South Carolina Administrative Law Judge Division has personal and subject matter jurisdiction over this matter.

2. Notice of the date, time, place and subject matter of the hearing was timely given to the parties and the protestants.

3. The Petitioner seeks an on-premises beer and wine permit and a sale and consumption (minibottle) permit for the establishment located at 3990 Highway 378, Conway, South Carolina.

4. The proposed location is in a rural area. The location is primarily a restaurant engaged in the preparation of hot meals.

5. Although there was testimony concerning heavy traffic in front of the restaurtant, the local sheriff's office, which was apprised of the permit and license applications, has made no objections based on traffic concerns.

6. Bryan Stamey and Daniel Kelly are the principal officers of the Petitioner. Both Stamey and Kelly were twenty-one years of age or older at the time of the application. Both Stamey and Kelly are residents of the State of South Carolina.

7. Neither Stamey nor Daniel have ever had a beer and wine permit or sale and consumption (minibottle) license revoked.

8. Notice of the application appeared at least once a week for three (3) consecutive weeks in a newspaper of general circulation in the area.

9. Notice of the application has been provided to the general public by the South Carolina Law Enforcement Division through the posting of a sign for a minimum of fifteen (15) days at the site of the proposed location.

10. Both Stamey and Kelly are of good moral character. Neither Stamey nor Kelly has any record of criminal violations.



CONCLUSIONS OF LAW

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. 1998).

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).

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).

8. S.C. Code Ann. § 61-4-525 (Supp. 1998) 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. Standards for judging the suitability of a proposed location for the sale of beer and wine are not to be determined by the local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State of South Carolina. The sale of beer and wine is a lawful enterprise in South Carolina, regulated by the State.

11. After considering all the relevant factors, I find that the location is suitable for an on-premises beer and wine permit and a sale and consumption (minibottle) permit.



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 and a sale and consumption (minibottle) license is GRANTED.

AND IT IS SO ORDERED.



_____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



September 25, 2000

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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