ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-310 (Supp. 2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) for a contested case hearing. The Petitioner,
James D. Neely, Jr., d/b/a H & R In & Out, seeks an on-premises beer and wine permit for an establishment
located at 3265 Ridgeway Road, Great Falls, South Carolina 29055.
Reverend Michael Sollers ("Protestant") protested the issuance of an on-premises beer and wine permit to
the Petitioner for the proposed location. In the Agency Transmittal Form forwarded to the Administrative
Law Judge Division ("ALJD") by the South Carolina Department of Revenue ("Department"), the ALJD was
informed that the Protestant raised a question of suitability of the location. Department stated in the Agency
Transmittal Form that but for this protest, the permit would have been issued by the Department to the
Petitioner.
The Department filed a Motion to be Excused, stating that the Department would have granted the permit but
for the protest of the application. This Motion was granted by Order dated May 24, 2001.
After timely notice to the parties and protestant, a hearing was held at the Administrative Law Judge Division
("ALJD") in Columbia, South Carolina on July 26, 2001. Protestant was not present at the hearing; however,
he notified the ALJD that he would not be able to attend.
FINDINGS OF FACT
Having carefully considered the testimony, and taking into account the credibility of the evidence, I find the
following by a preponderance of the evidence:
1. Petitioner, James D. Neely, Jr., d/b/a H & R In & Out, seeks an on-premises beer and wine
permit for an establishment located at 3265 Ridgeway Road, Great Falls, South Carolina.
2. Notice of the time, date, place, and subject matter of the hearing was given to all the parties in
a timely manner.
3. H & R In & Out is currently operated as a convenience store and possesses an off-premise beer
and wine permit.
4. Petitioner plans to have pool tables in the downstairs area of the convenience store and serve
beer and wine for his patrons.
5. The proposed days and hours of operation for the on-premise beer and wine permit are 6:00
p.m. until 12:00 p.m. on Fridays and Saturdays.
- In the written protest of Reverend Michael Sollers filed with the Department and
forwarded to the ALJD, the Protestant stated that he objected to the issuance of the beer and wine permit at
the proposed location because it is within close proximity to an intersection. The Protestant noted that there
have been several accidents at the intersection due to intoxicated drivers.
- The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp.
2000) concerning the residency and age of the applicant are properly established. Furthermore, the Petitioner
has not had a permit or license revoked within the last two years. Notice of the application was lawfully
posted both at the location and in a newspaper of general circulation.
- The Petitioner is of sufficient moral character to receive a beer and wine permit.
- The proposed location is not unreasonably close to any church, school or
playground.
- The Department does not oppose Petitioner's application and would have issued
the permit but for the protest.
- I find that the evidence did not establish that the granting of the permit and license
for this location would have an adverse impact on the community. Therefore, the proposed location is
suitable for the on-premise beer and wine permit.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the ALJD to hear contested cases under the
Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1999) grants the ALJD the responsibilities to determine contested
matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-4-520 (Supp. 1999) sets forth the requirements for the issuance of an on-premise beer
and wine permit.
4. In addition to the requirements set forth above, a license for the sale and consumption of alcoholic
beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 1999) are met.
5. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in
determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281
S.E2d 118 (1981).
6. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the
Petitioner and the proposed business location for a license or permit using broad, but not unbridled,
discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
7. 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 operations of the proposed business and its impact
upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
8. 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 or license is
not a sufficient reason by itself to deny the application. See 45 Am. Jur.2d Intoxicating Liquors § 162 (Supp.
1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
10. The Petitioner meets the statutory requirements for holding a beer and wine permit at the proposed
location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department shall continue processing Petitioner's application for an on-premise beer
and wine permit for 3265 Ridgeway Road, Great Falls, South Carolina.
AND IT IS SO ORDERED.
______________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
August 1, 2001
Columbia, South Carolina |
