South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Mary L. McLemore, d/b/a D-Fresh Seafood and D's Package Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Mary L. McLemore, d/b/a D-Fresh Seafood and D's Package Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-17-0291-CC

APPEARANCES:
Kenneth E. Allen, Attorney for Applicant
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and

§§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon applications for an on-premises beer and wine permit and retail liquor license for 1118 Cannon Bridge Road, Cordova, South Carolina, filed by Mary L. McLemore with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on November 29, 1994. The issues considered were: (1) the applicant's eligibility to hold a permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. Although timely notice had been given, no protestants appeared at the hearing. The permit and license applications are granted.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) The applicant seeks an on-premises beer and wine permit and retail liquor license for a location at 1118 Cannon Bridge Road, Cordova, South Carolina, having filed applications with DOR, AI #98515 and AI #98517.

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

(3) The hearing was scheduled to commence at 9:00 a.m., November 29, 1994.

At 9:18 a.m., the hearing began.

(4) No protestants were present at the hearing to testify in opposition to the application, though Ms. Nancy Hutto had previously filed a written protest to the applications. Ms. Hutto made no contact with the Court to request a continuance and did not inform the Court that she would not appear.

(5) Applicant intends to operate the seafood shop and adjoining liquor store.

(6) The proposed location was previously licensed as a retail liquor store and bait and tackle shop selling beer and wine for on-premises consumption under the name of Sonny's, until it closed in 1992.

(7) The proposed location is located in rural Orangeburg County

(8) There are no churches, schools, or playgrounds within 500 feet of the proposed location.

(9) 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.

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

(11) The applicant is of good moral character.

(12) 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.

CONCLUSIONS OF LAW

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

(1) S.C. Code Ann. § 61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.

(3) S.C. Code Ann. §§ 61-3-410(3), 61-3-420, and 61-3-440 (Supp. 1993) set forth the requirements for a retail liquor licensee.

(4) A permit or license must not be issued if an applicant does not meet the standards of S.C. Code Ann. § 61-3-730 (Supp. 1993).

(5) 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).

(6) 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).

(7) The proposed location is suitable and proper, in light of the past history of a similar business operating at the same location without evidence of incident or nuisance.

(8) Applicant meets the statutory requirements for issuance of a beer and wine permit and retail liquor license.

(9) Protestant's failure to appear constitutes default under Rule 23 of the Temporary Operating Procedures of the Administrative Law Judge Division.

ORDER

IT IS THEREFORE ORDERED that DOR issue to Applicant an on-premises beer and

wine permit and retail liquor license upon payment of the prescribed fee and bond.





_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

November 29, 1994

Columbia, South Carolina


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