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:
Wilbur Darby, d/b/a Independent Club vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Wilbur Darby, d/b/a Independent Club
511 Ron McNair Blvd., Lake City, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0111-CC

APPEARANCES:
Wilbur Darby, pro se

Nicholas P. Sipe, Esquire, for the Respondent
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the South Carolina Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600 (Supp. 2000) following the Petitioner's request for a contested case hearing. The Respondent denied the Petitioner's application for an on-premises beer and wine permit because of public protests by concerned citizens concerning the suitability of the location. (1)

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

A hearing was held in this matter on May 31, 2001 at the South Carolina Administrative Law Judge Division, located at 1205 Pendleton Street, Suite 224, Columbia, South Carolina. Notice of the time, date, place, location, and hearing was timely sent to all parties, as well as the Protestant.



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:

  • The Petitioner seeks an on-premises beer and wine permit for an establishment known as the Independent Club, located at 511 Ron McNair Boulevard, Lake City, in Florence County, South Carolina.
  • The Petitioner was born on February 14, 1962, and was 39 years of age at the time of the hearing.
  • Notice of the application has appeared at least once a week for three (3) consecutive weeks in the Lake City News & Post, a newspaper of general circulation in the area where the Petitioner proposes to engage in business. The notice appeared on September 27, October 4, and October 11, 2000.
  • Notice of the application was given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.
  • The Petitioner has been a legal resident of the State of South Carolina for over thirty (30) days prior to the application and has maintained his principal place of abode in the State of South Carolina for over thirty (30) days prior to the application.
  • The Petitioner has never had a beer or wine permit or any other alcoholic beverage license/permit issued revoked. This location has been previously permitted for the sale of alcoholic beverages.
  • The Petitioner is of good moral character.
  • The business hours of the proposed location will be Monday through Saturdy, 10:00 a.m. to 12:00 p.m.
  • No church, school, or playground is located within five hundred (500) feet of the proposed location.




CONCLUSIONS OF LAW



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

    • The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000).
    • 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).
    • The applicant has complied with all the provisions of S.C. Code Ann. § 61-4-250 regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61-4-520(7).
    • 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 retail liquor license. 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).
    • 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.
    • 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.
    • 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). In this case, there were nine incidents within the past four years. These incidents, however, all occurred under different management.
    • 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).
    • 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).
    • I find that this location and the operator are suitable for the on-premises sale of beer and wine.

ORDER

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

ORDRED that the Petitioner's application for an on-premises beer and wine permit is GRANTED.



AND IT IS SO ORDERED.





____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge





June 4, 2001

Columbia, South Carolina

1. The Protestant in this matter was Chief David Haines of the Lake City Police Department. Chief Haines cited as reasons behind the protest various incidents that have occurred at the location in the past, when the location was under different management.


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