ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2001) and S.C. Code Ann. § 1-23-310 et seq.
(Supp. 2001) upon filing of applications by Petitioner, Sarah P. Faile, d/b/a E-Z Quick, ("Petitioner") for an on-premise
beer and wine permit for a location at Route 2, Box 412, in Jefferson, South Carolina. Upon receipt of a written protest to
the application, the South Carolina Department of Revenue ("Department") transmitted the case to the Administrative Law
Judge Division ("ALJD") for a hearing. After timely notice to the parties and Protestant, a contested case hearing was held
on March 14, 2002, at the ALJD in Columbia, South Carolina. J. Allan Faile testified in support of Petitioner's application.
Although a written protest was made to Faile's application, no protestant appeared at the hearing to testify. Upon review
of the relevant and probative evidence and applicable law, the application for an on-premise beer and wine permit is
granted.
FINDINGS OF FACTHaving carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the
credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of the evidence:
- Notice of the time, date and place of the hearing was given to the Petitioner,
Protestant, and Department. In addition, the Petitioner and Max Johnson, the Protestant, were both notified by this office
by telephone that the time for the hearing would be 2:30 p.m. instead of 2:00 p.m.
2. Sarah P. Faile, on behalf of E/Z Quick, seeks an on-premise beer and wine permit for the proposed location at
Route 2, Box 412, in Jefferson, South Carolina.
3. E/Z Quick is a convenience store located at the intersection of Highways 903 and 153 in Kershaw County, halfway
between the cities of Jefferson and McBee.
- The Department moved to be excused from appearing at the hearing on the
ground that it would have granted the permit and licenses but for the protest of Max Johnson, who called into question the
suitability of the location. Said motion was granted.
5. At 2:30 p.m. on March 14, 2002, the undersigned commenced the contested case hearing. No one, either Max
Johnson or anyone appearing on behalf of Johnson, appeared at the hearing to protest the issuance of an on-premise license
to the Petitioner. After adjourning temporarily to allow any protestant to arrive, the undersigned reconvened the hearing at
2:45 p.m. that same day. Again, no one protesting Petitioner's application was present in the courtroom.
6. The evidence did not establish that the granting of the permit or license for this location will have an overall adverse
impact on the community. If that change occurs after the Petitioner receives the permit and license, the proposed location
may no longer be suitable and the Department could properly bring an action to revoke the Petitioner's permit.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
- Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001), S.C. Code Ann. § 1-23-600(B) (Supp. 2001) and S.C. Code Ann.
§ 1-23-310 et seq. (Supp. 2001) the South Carolina Administrative Law Judge Division has jurisdiction in this matter.
- S.C. Code Ann. § 61-4-520 (Supp. 2001), which sets forth the requirements for the issuance of a beer and wine permit,
provides, in relevant part:
No permit authorizing the sale of beer or wine may be issued unless:
1)The applicant, any partner of co-shareholder of the applicant, and each agent, employee and servant of the applicant to be
employed on the licensed premises, are of good moral character.
2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days
before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the
date of application. ***
5) The applicant is twenty-one years of age or older.
6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.
7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences,
schools, playgrounds and churches. This item does not apply to locations licensed before April 21, 1986.
***
- The Petitioner, Sarah P. Faile, has met the qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2001),
concerning residency, age, moral requirements, criminal convictions, reputation for peace and good order in its
community, as well as the publication and notice requirements.
- The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the
executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476
(Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of
the proposed business location of an applicant for a permit to sell beer and wine using broad, but not unbridled,
discretion. Ronald F. Byers v. S.C. 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 witnesses and determine the relevance and weight of any
testimony and evidence offered.
- Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or
suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). The determination
of suitability of a 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). The proximity of a
location to a church, school or residences is a proper ground by itself upon which the location may be found to be
unsuitable and a permit denied. Byers v. S. C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court
can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984).
- 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).
- 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 by itself to
deny the application. See 45 Am.Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119
(1981).
- Permits issued by the State for the sale of beer and wine are not rights or property, but are rather privileges granted in the
exercise of the police power of the State. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
- I conclude that the Petitioner has met her burden of proof in showing that it meets all of the statutory requirements for
holding an on-premise beer and wine permit at the proposed location. I further conclude that the proposed location is a
proper one for granting the permit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Petitioner's application for an on-premises beer and wine permit for the proposed
location, known as E-Z Quick, located at Route 2, Box 412, Jefferson, SC, Columbia, South Carolina is granted upon
payment of all fees and statutory requirements;
AND IT IS SO ORDERED.
___________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
March 15, 2002
Columbia, South Carolina |
