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SC Administrative Law Court Decisions

Curran A. Smith, d/b/a Max Saver vs. SCDOR

South Carolina Department of Revenue

Curran A. Smith, d/b/a Max Saver

South Carolina Department of Revenue

Kenneth Allen, Esq. for Applicant

John Woods, Protestant



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 an off-premises beer and wine permit for 1202 Fairview Road, Simpsonville, South Carolina, by Curran A. Smith, d/b/a Max Saver, filed with the Department of Revenue and Taxation (DOR). A hearing was held on June 7, 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 permit application is granted.


By a preponderance of the evidence, I find:

(1) The applicant seeks an on-premises beer and wine permit for a location at 1202 Fairview Road, Simpsonville, South Carolina, having filed an application with DOR, AI no. 97321, on March 29, 1994.

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

(3) John Woods, of 378 Hillside Church Road, Fountain Inn, SC, appeared as a protestant and testified in opposition to the application at the hearing.

(4) The proposed location is currently selling beer and wine under permit BG 507030, in the name of Mendel A. Smith, d/b/a Max Saver.

(5) Mendel A. Smith is the deceased business partner of the applicant. The applicant seeks to have a new permit issued in his name.

(6) Unity Baptist Church is .4 miles from the proposed location and is the closest church, school, or playground to the proposed location.

(7) The proposed location is clean and has been operated without complaint or incident since opening.

(7) The surrounding neighborhood is mostly rural in nature.

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

(9) The applicant has not had a permit revoked in the last two years.

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

(11) 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.


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 now defunct Alcoholic Beverage Control Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

S.C. Code §61-9-320 (Supp. 1993) provides the criteria for issuance of a beer and wine permit.

A permit must not be issued under S.C. Code §61-3-730 (Supp. 1993) 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.

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 Commission, 317 S.E.2d 476 (S.C. 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 Commission, 316 S.E.2d 705 (S.C. 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.

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).

S.C. Code §61-9-340 (Supp. 1993) states that upon a determination that an applicant meets the criteria set forth above and has not misstated or concealed a fact in the application, DOR must issue the permit after payment of the prescribed fee.

In the instant case, I conclude that the location and business activity are proper and the applicant suitable for issuance of the permit sought.


IT IS THEREFORE ORDERED that DOR grant and issue the off-premises beer and wine permit applied for.



Administrative Law Judge

June 9, 1994

Columbia, South Carolina

Brown Bldg.






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