ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
§§ 1-23-310, et seq. (1986 & Supp. 1994) upon application for an on-premises beer and wine
permit for Route 2, Box 868, Highway 120, Pinewood, South Carolina, filed by Glenda T.
Rodgers with the South Carolina Department of Revenue and Taxation (hereinafter referred to as
"DOR"). A hearing was held on July 19, 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 was 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 Route 2,
Box 868, Highway 120, Pinewood, South Carolina, having filed application with DOR, AI
#103024.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant and protestants (by certified mail) and DOR.
(3) The hearing was scheduled to commence at 2:30 p.m., July 19, 1995. The hearing
began at approximately 2:45 p.m.
(4) Although James S. Mitchell, Jr. had previously filed a written protest to the
application, no protestants were present at the hearing to testify in opposition to the application.
Mr. Mitchell made no contact with the Court to request a continuance or to inform the Court that
he would not appear.
(5) Applicant operates the proposed location as a small grill and bait and tackle shop.
(6) The proposed location is in an unincorporated area of Sumter County near Lake
Marion.
(7) The proposed location was previously licensed to sell beer and wine for off-premises
consumption for about eight years under former permittee, Robin Timmons.
(8) There are no residences, schools, or playgrounds within close proximity of the
proposed location.
(9) An unnamed church is approximately 255 feet from the proposed location.
(10) 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.
(11) The applicant has not had a permit/license revoked in the last five years.
(12) The applicant is of good moral character.
(13) 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.
(14) DOR did not appear at the hearing and did not indicate any opposition to issuance of
the permit sought.
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. 1994) 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. 1994) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(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) 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).
(5) 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.
(6) Applicant meets the statutory requirements for issuance of a beer and wine permit.
(7) Protestant's failure to appear constitutes default under ALJD Rule 23, entitling
Petitioner to the relief requested.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Applicant an on-premises beer and
wine permit upon payment of the prescribed fee and bond.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July ____, 1995
Columbia, South Carolina |
