ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§61-1-55, et seq. (Supp. 1993) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1993) for
a contested case hearing. The Applicant, Wilbur Earl Moses, seeks an on-premise beer and wine
permit for W. W. Grocery and Lounge. A hearing was held on April 18, 1995 at the office of
Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The permit requested by the Applicant is denied.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. The court has subject matter jurisdiction of this case.
2. The Applicant seeks an on-premise beer and wine permit for W. W.
Grocery and Lounge at 1018 S. Christopher Lane, Florence, South
Carolina.
3. Notice of the time, date, place and subject matter of the hearing was
given to the Applicant, Protestants, and South Carolina Department
of Revenue.
4. The qualifications set forth in S. C. Code Ann. § 61-9-320 (Supp.
1993) concerning the residency and age of the Applicant are properly
established. Furthermore, the Applicant has not had a permit or
license revoked within the last two years.
5. The Applicant failed to ensure that notice of his seeking an application
was properly maintained at the proposed location.
6. The Applicant held a beer and wine permit at the proposed location
several years previously. While he held that permit the residents of the
local area experienced problems with heavy and congested traffic.
The patrons of the business blocked the entrances to their homes
making it difficult to "come and go" from their own residences. The
Applicant's business also produced loud music and the individuals
attending his facility exhibited rowdy behavior. The Applicant's
response to his patrons behavior was that he can't control what occurs
outside his business. However, that fact is exemplary of the very
reason why this proposed location is not suitable.
7. A church is located approximately 350 feet away from the proposed
location.
8. The proposed location is situated in the middle of an established
residential neighborhood. Residents surround the proposed location
on all sides. In fact, the proposed location has apparently been a
residence itself in the past.
9. Although there is no playground in the area, children live in the
neighborhood where the Applicant seeks this permit. The children
would be exposed to increased traffic risks and dangers as well as the
behavior of the patrons of this proposed location.
10. The proposed location is unsuitable for either an on or off-premise
beer and wine permit.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law the following:
1. Section 1-23-600 S.C. Code Ann. (Supp. 1993) grants jurisdiction to
the Administrative Law Judge Division to hear contested cases under
the Administrative Procedures Act.
2. Section 61-1-55 S.C. Code Ann. (Supp. 1993) grants to the
Administrative Law Judge Division the powers, duties and
responsibilities as hearing officer in protested and contested matters
governing alcoholic beverages, beer and wine.
3. Section 61-9-320 S.C. Code Ann. (Supp. 1993) sets forth the
requirements for the issuance of an on or off premise beer and wine
permit.
4. As trier of fact, an Administrative Law Judge is authorized to
determine the fitness or suitability of the proposed location of an
applicant for a permit or license to sell alcohol, beer or wine using
broad but not unbridled discretion. Byers v. S. C. ABC Commission,
316 S.E. 2d 705 (S.C. App. 1984).
5. The determination of suitability of a location is not necessarily a
function 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 located. Kearney v. Allen,
287 S.C. 324, 338 S.E. 2d 335 (1985).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED AND ADJUDGED that the application of Wilbur E. Moses for an on-premise
beer and wine permit be denied.
________________________________
Ralph King Anderson, III
Administrative Law Judge
April 27, 1995
Columbia, South Carolina |
