ORDERS:
ORDER AND DECISION
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 on-premises beer and wine permit for Rt. 1, Box 79-0, Silverstreet, South Carolina, on Highway 34
in Newberry County, by Franklin A. Brown filed with the South Carolina Department of Revenue
and Taxation (hereinafter referred to as "DOR"). A hearing was held on March 29, 1995. Notice
of the hearing was given by certified mail to the applicant and by first class mail to the protestant.
Applicant failed to appear or contact the Court to request a continuance, constituting default.
The hearing was conducted in Applicant's absence. The permit application is hereby denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Applicant seeks an on-premises beer and wine permit for a location at Rt. 1,
Box 79-0, Silverstreet, South Carolina, on Highway 34 in Newberry County, having filed an
application with DOR, AI #100051.
(2) Notice of the time, date, place, and subject matter of the hearing was given to
Applicant, protestants, and DOR.
(3) Applicant received notice of the hearing via certified mail, return receipt signed and
dated by Applicant February 8, 1995.
(4) Applicant did not communicate with this Court in any way to indicate that he would
not be present at the hearing, and he did not request a continuance.
(5) After allowing fifteen (15) minutes from the scheduled time of commencement of the
hearing and announcing in the hall the beginning of the proceedings, the hearing was conducted
with Applicant in absentia.
(6) Protestant, Deputy Wright, informed the Court that he had personally attempted to
talk with Applicant prior to the hearing, calling three times on the telephone and leaving a
recorded message twice. Applicant failed to return Deputy Wright's calls.
(7) In light of Applicant's failure to appear at the hearing, Deputy Wright requested that
the Court deny the permit application.
(8) The Newberry County Sheriff's Department, through Chief Deputy Jerry Wright,
protests the application on the grounds that the proposed location is unsuitable and that the
Applicant lacks the moral character to hold such a permit.
(9) The DOR file was incorporated into the record of the hearing without objection.
(10) Applicant is over twenty-one (21) years of age.
(11) Applicant is a citizen of the State of South Carolina maintaining his principal
residence in South Carolina.
(12) Applicant has not had a permit revoked in the last two years.
(13) There is no evidence that Applicant is not of good moral character; however, the
DOR file indicates he was convicted of Driving Under the Influence in Newberry County on
August 12, 1991.
(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) 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) 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).
(4) Applicant is in default, and dismissal of the case adversely to Applicant pursuant to
Rule 23, Temporary Operating Procedures of the Administrative Law Judge Division is in order.
ORDER
IT IS THEREFORE ORDERED that DOR deny the on-premises beer and wine permit
applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
March 30, 1995
Columbia, South Carolina |
