ORDERS:
ORDER AND DECISION
The Court's Order and Decision in the above matter dated December 21, 1994,
contains typographical errors which are hereby amended by this Order.
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and
S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an off-premises beer and wine permit for Box 94-D, Route 3, Edgefield, South Carolina, by
Clinton D. Bertholf filed with the South Carolina Department of Revenue and Taxation (hereinafter
referred to as "DOR"). A hearing was held on December 15, 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. The permit application is hereby denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Applicant seeks an off-premises beer and wine permit for a location at Box 94-D,
Route 3, Edgefield, South Carolina, having filed an application with DOR, AI #99777.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) The proposed location is currently operating as a small convenience-type store, selling
an assortment of groceries, hardware, and fishing gear.
(4) The proposed location is in rural Edgefield County on Garrett Road near Lake
Thurmond.
(5) Testifying in opposition to the application were: Cindy Miller, a resident of a nearby
community; Alison Diamond, a resident of the immediate area of the proposed location;
Martha W. Martin, residing next door to the proposed location; Sharon Lavender, a resident of
Garret Road; and William J. Jennings, a resident of Modoc.
(6) The proposed location is located within four hundred feet (400') of eight residences.
(7) There are approximately twenty children living within 180 yards of the proposed location.
(8) Most of the proposed location's current customers come to the store by automobile.
(9) The speed limit of Garrett Road where the proposed location is situated is 45 mph.
(10) The applicant is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained his principal residence in South Carolina for more than one year.
(11) The applicant has not had a permit revoked in the last two years.
(12) The applicant, who intends to be the manager of the business, is of suitable character and
temperament to hold a beer and wine permit.
(13) 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) The South Carolina Administrative Law Judge Division is empowered to hear this case
pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and 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 before issuance
of a beer and wine permit.
(3) Pursuant to S.C. Code Ann. § 61-3-730 (Supp. 1993), a permit must not be issued if the
applicant is not a suitable person to be licensed or the place of business is not a suitable place.
(4) 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).
(5) The proposed location is unsuitable for the sale of beer and wine because of the proximity
of residences and the presence of numerous children in the area.
ORDER
IT IS THEREFORE ORDERED that DOR deny the off-premises beer and wine permit
applied for.
The Court's previous Order and Decision in the above-captioned case dated
December 21, 1994, is hereby rescinded. The Court's Amended Order and Decision dated
January 6, 1995, is now in effect.
________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
January 6, 1995
Columbia, South Carolina |
