South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Mary L. Simmons, d/b/a Pineland Convenience Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Mary L. Simmons, d/b/a Pineland Convenience Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0394-CC

APPEARANCES:
Mary L. Simmons, (pro se) Petitioner

Captain William Martin, Orangeburg County Sheriff's Department, (pro se) Protestant
 

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 a beer and wine permit for

1183 A Pineland Street, Orangeburg, South Carolina, filed by Mary L. Simmons with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held in Orangeburg at the Orangeburg County Courthouse on August 23, 1995. At the hearing, the sole protestant appearing withdrew his protest with the stipulation that Petitioner amend her beer and wine permit application from an on-premises consumption to an off-premises consumption permit. Petitioner agreed to the stipulation. Although timely notice had been given, the remaining protestant of record did appear at the hearing. The permit is hereby granted as amended.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) The applicant filed with DOR an on-premises beer and wine permit application for a location at 1183 A Pineland Street, Orangeburg, South Carolina, AI #102977.

(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 10:00 a.m., August 23, 1995.

The hearing began at approximately 10:15 a.m.

(4) The sole protestant present at the hearing was Captain William Martin of the Orangeburg County Sheriff's Department. No other protestants appeared at the hearing to testify in opposition to the application, although Gladys Lee had previously filed written protests to the application. Ms. Lee did not contact the Court to request a continuance, and she did not inform the Court that she would not appear.

(5) Upon stipulation of Mary L. Simmons and Captain Martin, entered into the record of the hearing, application AI #102977 was amended to be an application for an off-premises beer and wine permit.

(6) Upon amendment of the permit application, Captain Martin withdrew his protest.

(7) DOR did not appear at the hearing and did not express opposition to the issuance of the permit.

(8) Applicant operates the proposed location as a small family grocery store.

(9) 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.

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

(11) The applicant is of good moral character.

(12) 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. 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) 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).

(4) The proposed location is suitable and proper, in light of the amendment of the permit to allow only off-premises consumption of beer and wine bought at the proposed location.

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

(6) Protestant Gladys Lee's failure to appear constitutes default under ALJD Rule 23.

ORDER

IT IS THEREFORE ORDERED that Applicant's application for an on-premises beer and wine permit, AI # 102977, be amended to an application for an off-premises beer and wine permit.

IT IS FURTHER ORDERED that DOR issue to Applicant an off-premises beer and

wine permit upon payment of the prescribed fee and bond.



_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

August 31, 1995

Columbia, South Carolina


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