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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Ann Barr, d/b/a Barr's ABC Package Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Ann Barr, d/b/a Barr's ABC Package Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-0033

APPEARANCES:
Kenneth E. Allen, Esq. for Applicant
Rev. Kermmit Dease, Protestant
John Daley, Protestant
Chief Deputy Franklin McAllister, Protestant
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310 et seq. upon an application for a retail liquor license for 901 N. Pamplico Highway, Pamplico, South Carolina, by Ann Barr filed with the Department of Revenue and Taxation (DOR). A hearing was held on May 6, 1994. The issues considered were the applicant's eligibility to hold a permit; the suitability of the proposed business location; and, the nature of the proposed business activity. The license is granted.

FINDINGS OF FACT

By a preponderance of the evidence, I find these facts:

(1) The applicant seeks a retail liquor license for a location at 901 N. Pamplico Highway, Pamplico, South Carolina, in the Hyman community, having filed an application with DOR, AI no. 97096, on December 28, 1993.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, SLED, and DOR.



(3) The following protestants were present and testified in opposition to the application at the hearing: Kermit Dease, pastor of Beaulah Baptist Church; John Daley; and Franklin McAllister, Chief Deputy of Florence County.

(4) The applicant is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained principal residence in South Carolina for more than one year.

(5) The applicant has not had a license revoked in the last five years.

(6) The applicant, who intends to be the manager of the business, is of good moral character.

(7) Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.

(8) The applicant has owned and operated Barr's Tavern, which holds an on-premises beer and wine permit, adjacent to the proposed location for over ten years. Barr's Tavern will continue to operate even if the present license applied for is denied.

(9) An establishment selling gas and groceries and holding a beer and wine permit is located next to the proposed location, on the other side of State Road S-21-105.

(10) The applicant has received permission from Buddy Rabon, who owns and operates a truck and body shop next door to the proposed location and lives across the street, to allow customers to use his parking lot.

(11) The area surrounding the proposed location is a commercial and residential community in unincorporated Florence County.

(12) The application was not protested by any of the residents in the immediate vicinity of the proposed location.

(13) No church is within five hundred feet (500') of the proposed location, the closest church being Beaulah Baptist Church.

(14) No school or playground is within five hundred feet (500') of the proposed location.

(15) The Florence County Sheriff's Department provides police protection to the area by periodically patrolling the area and responding to calls.

(16) The proposed location and business activity are suitable and proper and an issuance of a retail liquor license would not have an adverse effect on the surrounding community.

CONCLUSIONS OF LAW

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

S.C. Code §61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge Division is empowered to hear all cases previously heard by the former ABC Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

DOR is authorized to issue retail liquor licenses under the provisions of S.C. Code §61-3-410(3) (Supp. 1993).

S.C. Code §61-3-420 (Supp. 1993) provides the requirements to be met by an applicant seeking a liquor license. I conclude that the applicant is eligible to hold a retail liquor license.

S.C. Code §61-3-440 (Supp. 1993) dictates the minimum distances that a location must be from churches, schools, and playgrounds. No churches, schools, or playgrounds are within the prescribed proximity to render the proposed location unsuitable.

S.C. Code §61-3-470 (Supp. 1993) provides that retail dealers may be licensed in unincorporated communities when it is considered in the interest of the community to have one located therein, so long as the area is under proper police protection. I conclude that it is not against the interest of the Hyman community, having no other retail liquor outlet and the Florence County Sheriff's Department providing police protection on call and on patrol, to have the application approved.

S.C. Code §61-3-730 (Supp. 1993) prohibits issuance if the applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a sufficient number of licenses have already been issued in the State, municipality, or community. I conclude that the applicant is a suitable person to be licensed; the place of business is suitable, considering the immediate surroundings; and no other retail liquor licenses have been issued in the area.

The factual determination of whether or not an application is granted is usually the sole prerogative of the tribunal charged with rendering that decision. Palmer v. S.C. ABC Commission, 317 S.E.2d 476 (S.C. App. 1984). As the trier of fact, an administrative law judge must determine the fitness or suitability of the proposed business location for a license using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d 705 (S.C. App. 1984). It is also

the fact finder's duty to judge the demeanor and credibility of witnesses and determine the relevance and weight of the evidence offered.

In determining whether a proposed location is suitable any evidence adverse to the location may be considered. The proximity of a location to a church, school, or residences is a proper ground, by itself, on which the location may be found to be unsuitable and a permit denied. William G. Byers v. S.C. ABC Commission, ___ S.C. ___, 407 S.E.2d 653 (1991). The determination is not necessarily a function solely of geography, however. It may involve 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. 335 (1985).

I conclude that the applicant has carried the burden of proof in establishing that she meets the requisite standards for issuance of the license applied for.

IT IS THEREFORE ORDERED that DOR issue to the applicant a retail liquor license upon payment of the prescribed fee and bond.

___________________________

STEPHEN P. BATES

Administrative Law Judge

June 1, 1994

Columbia, South Carolina


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