South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Robert G. Peek, d/b/a Peek's I-26 Auto Truck Plaza vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Robert G. Peek, d/b/a Peek's I-26 Auto Truck Plaza

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0104-CC

APPEARANCES:
For the Petitioner: Pro Se

For the Respondent/South Carolina Department of Revenue and Taxation: Nicholas P. Sipe, Esquire

For the Protestants: R. Keith Kelly, Esquire
 

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, Robert G. Peek, seeks an off-premise beer and wine permit for Peek's I-26 Auto Truck Plaza. A hearing was held on April 12, 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 off-premise beer and wine permit for Peek's I-26 Auto Truck Plaza, at 4225 Walnut Grove Road, Spartanburg, 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 and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

5. The Applicant's business activities at the proposed location are that of a truck stop, convenience store and restaurant (truck stop). The truck stop is located in Spartanburg County near the town of Woodruff. It borders upon Highway 50 which is a heavily traveled, two-lane road. The truck stop was also adjacent to I-26.

6. The truck stop is open every day from 6:00 a.m. to 12:00 a.m. The Applicant will manage the business himself and stipulates that the nature of the business will remain the same.

7. The truck stop is located 229 feet from a church and approximately 200 feet to 300 feet from the church parsonage.

8. The Applicant has operated this business for approximately eight months. During that period the Applicant obtained a temporary permit to sell beer and wine from November 30, 1994 to March 30, 1995. The previous owner held a permit for the location for approximately 10 years.

9. A housing development exists less than one mile from the truck stop.

10. The Applicant admitted to selling beer to a customer on April 8, 1995. The sell of that beer was after the expiration of the above temporary permit.

11. The Applicant stipulated that he owed both federal and state taxes.

12. The proposed location is unsuitable for an off-premise beer and wine permit because of its proximity to the church and the adjacent parsonage and also because of the Applicant's admitted violation of the alcohol beverage laws.



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 Robert G. Peek for an off-premise beer and wine permit be denied.



________________________________

Ralph King Anderson, III

Administrative Law Judge

April 28, 1995

Columbia, South Carolina


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