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 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.
FINDINGS OF FACT
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.
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) 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.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Applicant an on-premises beer and
wine permit applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
March 15, 1995
Columbia, South Carolina |
