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, Julie L. Behles, seeks an off-premise beer and wine permit
for Hog Heaven. 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 approved.
FINDINGS OF FACT
1. The court has subject matter jurisdiction of this case.
2. The Applicant seeks an off-premise beer and wine permit for Hog
Heaven, 5400 Cope Road, Cope, South Carolina 29038.
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 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 is of sufficient moral character to receive a beer and
wine permit.
6. The proposed location is not close to any church, school or
playground.
7. The current owner of the business located at the proposed location
has held a beer and wine permit for the last five years. There have
been no problems or discipline associated with that permit during that
time period. Furthermore, that Applicant has never had a permit or
license revoked for any reason.
8. The proposed location is within the City of Cope. The location can
be described best as a "mom and pop" type grocery store. The
Applicant stated that if any individual purchasing beer or wine
attempts to loiter or remain on the property to consume the purchase,
she would be able to both observe them and also promptly tell them
to leave the premises.
This proposed location is suitable for the sale of beer and wine off-premise.
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-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).
6. Section 61-9-340 S.C. Code (Supp. 1993) provides that upon
determination that the applicant meets the criteria for the issuance of
a permit or license, and has not misstated or concealed a fact in the
application, the South Carolina Department of Revenue and Taxation
must issue the permit after payment of the prescribed fee.
7. I conclude that the Applicant meets all the statutory requirements for
holding an off-premise beer and wine permit at the proposed location.
ORDER
This is the Order based upon the Findings of Fact and conclusions of law, it is hereby:
ORDERED that the application of Julie L. Behles for an off-premise beer and wine permit
for Hog Heaven on 5400 Cope Road, Cope, South Carolina be granted upon the Applicant's payment
of the required fee and cost to the South Carolina Department of Revenue and Taxation.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
April 20, 1995
Columbia, South Carolina |
