South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

Sheila J. Berry, d/b/a Berry's Grocery vs. SCDOR

South Carolina Department of Revenue

Sheila J. Berry, d/b/a Berry's Grocery

South Carolina Department of Revenue

A. LaFon LeGette, Attorney for Applicant



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 for 101 West Main Street, Latta, South Carolina, filed by Sheila J. Berry with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on March 7, 1995. 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 is hereby granted.


By a preponderance of the evidence, I find:

(1) The applicant seeks an on-premises beer and wine permit for a location at 101 West Main Street, Latta, South Carolina, having filed applications with DOR, AI #100937.

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

(3) The hearing was scheduled to commence at 10:00 a.m., March 7, 1995.

At 10:18 a.m., the hearing began.

(4) No protestants were present at the hearing to testify in opposition to the application, although Earl Bullard, on behalf of the Latta Revitalization Commission, and

Rev. Howard McCartt, of the New Life Assembly of God, had previously filed written protests to the application. The protestants neither contacted the Court to request a continuance nor informed the Court that they would not appear.

(5) Applicant operates the proposed location as a small family grocery store also serving hamburgers and hot dogs. Applicant intends to also offer food from a grill and to sell box lunches.

(6) The proposed location has been owned and operated by Applicant's family since 1968.

(7) The proposed location was previously licensed to sell beer and wine for off-premises consumption in 1991, when it was owned and operated by Applicant's parents-in-law. The permit was voluntarily surrendered by the permitees because of a personal decision not to sell alcoholic beverages.

(8) Applicant and her family reside approximately 800 feet from the proposed location.

(9) The proposed location is located approximately 250 feet from the Latta Police Station.

(10) Applicant is the manager and sole employee of the business.

(11) 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 thirty days.

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

(13) The applicant is of good moral character.

(14) 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:

(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) 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).

(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 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).

(6) 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, the proximity of the police station, and the family atmosphere of the business.

(7) Applicant meets the statutory requirements for issuance of a beer and wine permit.

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


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

wine permit applied for.




March 15, 1995

Columbia, South Carolina

Brown Bldg.






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