SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division pursuant to the Petitioner's request for administrative review of the Respondent's denial of his application for a retail liquor license. The Respondent, in its Motion to be Relieved, informed the Court that it would have granted the application but for the public protests. ⁽¹⁾ Mr. Crow filed a Motion to Intervene on April 3, 2001. This Motion was granted on April 9, 2001. A hearing in this matter was heard on July 24, 2001 at the Administrative Law Judge Division. At the hearing, the parties stipulated that the only issue before the Court was the residency of the Petitioner.

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 a retail liquor store license to be located at 526-A Cheraw

Street, Bennettsville, South Carolina.

2. Samuel J. Thomas, III, is the sole proprietor of the business known as Thomas

Liquors. Mr. Thomas was born on June 22, 1952, and was 48 years of age at the time of the application.

• 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 retail liquor license.

5. The location has not previously been permitted as a retail liquor store. It is

in a commercial location and shares a parking lot with a convenience store and a laundromat.

The hours of operation for the location will be 9:00 a.m. until 7:00 p.m. Monday through Saturday.

7. Petitioner has not had any other permits revoked within the past three (3) years

and has held another retail liquor store license for another location in Bennettsville for many years.

8. This location is suitable for an establishment holding a retail liquor license. ⁽²⁾

9. Petitioner resides at 905 Loop Road in Marlboro County. This location is just outside the city limits of Bennettsville. He has resided at that address since 1998. He states he has never resided outside of South Carolina with the exception of attending college. Petitioner owns property in North Carolina and has a home there. Petitioner spends 75 to 80 percent of his time in South Carolina. He has a South Carolina driver's license and votes in Marlboro County.

10. The Intervenor contends that Petitioner is actually a resident of North Carolina.

However, the Petitioner and his wife stated that the only reason they have recently spend more nights at the North Carolina house than the South Carolina house is because they feel in jeopardy of their safety at the South Carolina house. They have received information repeatedly that the Petitioner's father has made death threats about them. Petitioner's wife testified that she much prefers to stay at the house in South Carolina because her daughter attends school in the immediate area. They both testified they feel safer at the North Carolina house because it has a security system.

11. The Respondent takes no position in the case except to say that the agency would

have issued the license except that there was a protest filed in the matter.

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. §1-23-600 and §61-2-260 (Supp. 2000).

2. The provisions at S.C. Code Ann. §61-6-110 and §61-6-910 (Supp. 2000) govern the

qualifications an applicant must possess to be eligible for a license concerning the sale of alcoholic liquors.

3. 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).

4. At issue in this matter is the residency of the applicant. S.C. Code Ann. §61-6-110

(Supp. 2000) provides that a person is not eligible for a license if he, "...has not been a resident of South Carolina for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date;."

• Title 61 which covers the laws on alcoholic beverages does not define "resident."

However, insofar as the South Carolina Code of Laws in concerned for taxation purposes, an area also under the umbrella of the Department of Revenue, a "resident" is a person domiciled in this State. See S.C. Code Ann. §12-6-30 and §12-16-20 and §12-43-220 (c)(1) (Supp. 2000). A domicile is defined as, "That place where a man has his true, fixed, and permanent home and principal establishment, and to which whenever he is absent he has the intention of returning...A person may have more than one residence but only one domicile." Dunmeyer vs. Charleston County Assessor, Docket No. 98-ALJ-17-0601-CC, February 25, 1999, 1999 WL 146239 (S.C. Admin.Law.Judge.Div.)(citing Black's Law Dictionary). To make the determination, this Division has looked to certain indicators of residency and domicile. Those indicators are the same as the ones in evidence in this case: voter registration, driver's license, business location, occupied residence. Dunmeyer vs. Charleston County Assessor, Docket No. 98-ALJ-17-0601-CC, February 25, 1999, 1999 WL 146239 (S.C. Admin.Law.Judge.Div.); Young vs. Peggy A. Moseley, Charleston County Auditor, and Charleston County Assessor, Docket No. 97-ALJ-17-0150-CC, December 18, 1997, 1997 WL 807858 (S.C.Admin.Law.Judge.Div.).

7. 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). In this instance there was not specific and credible testimony which, by a preponderance of the evidence, demonstrated that Petitioner was domiciled somewhere other than South Carolina. Petitioner has lived in South Carolina his entire life. He is in the process of starting his second business in South Carolina. He holds a driver's license in South Carolina. Although there has been some question as to his voter registration, he has always voted in South Carolina. He owns property in both North and South Carolina, but intends to spend more time in South Carolina. The Department of Revenue, which is the governmental body charged with regulating and enforcing violations concerning permits and licenses involving the sale of beer, wine or alcohol, did not object to the granting of a permit or license in this case. I find that the Petitioner is a legal resident of South Carolina and therefore may be granted a retail liquor license.ORDER

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

ORDERED that the Petitioner's application for an a retail liquor license is GRANTED.

IT IS FURTHER ORDERED that the Department of Revenue issue a retail liquor license to the Petitioner.

AND IT IS SO ORDERED.

__________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

September 5, 2001

Columbia, South Carolina

1. The Protestants in this matter were Randall Malichi and Samuel J. Thomas, Jr. Mr. Malichi did not appear at the hearing. His protest, therefore, is deemed abandoned.

2. I received a letter on July 31, 2001, informing me that a church has moved into the immediate area of the proposed location. Since that time I have received follow up correspondence and an affidavit from the pastor of church stating services are being held there. However, the record in this case was closed before this issue came to the attention of the court. Therefore, there is no way for me to judge the credibility or veracity of additional evidence. For these reason, the location of the church has no bearing on my finding as to whether this is a suitable location.