ORDERS:
DECISION AND ORDER
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. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994) for a contested case
hearing. The Petitioner, Michael W. Roberts seeks an on-premise beer and wine permit for Dutchman
Creek Marina. A hearing was held on September 26, 1995, in the Administrative Law Judge Division,
1205 Pendleton Street, Columbia, South Carolina.
The Permit requested by the Petitioner is approved.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their
credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I make the
following Findings of Fact by a preponderance of evidence:
1. Notice of the time, date, place and subject matter of the hearing was given
to the Petitioner, Protestants, and South Carolina Department of Revenue
and Taxation.
2. The Petitioner seeks an on-premise beer and wine permit for Dutchman
Creek Marina located at Route 4, Box 283-G, Winnsboro, South Carolina.
This location has been permitted for on-premise beer and wine for the
approximiately the last seventeen (17) years. The Petitioner has held the
Permit for the last two (2) years. He now seeks the permit as an officier of
the Dutchman Creek Marina Corporation.
3. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp. 1994)
concerning the residency and age of the Petitioner are properly established.
Furthermore, the Petitioner 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.
4. The proposed location is not close to any church, school or playground.
5. The Petitioner is of sufficient moral character to receive a beer and wine
permit.
6. The proposed location is suitable for an on-premise beer and wine permit.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1994) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the
Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1994) 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. S.C. Code Ann. § 6-9-320 (Supp. 1994) sets forth the requirements for the
issuance of an on-premise beer and wine permit .
4. Although "proper location" is not statutorily defined, broad discretion is
vested in the trier of fact in determining the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595, 281
S.E.2d 118, 119 (1981).
5. As the trier of fact, the Administrative Law Judge is authorized to determine
the fitness or suitability of the proposed business location of a Petitioner for
a beer and wine permit and a mini-bottle sale and consumption license using
broad, but not unbridled, discretion. Byers v. South Carolina ABC
Commission, 281 S.C. 566, 316 S.E.2d 705, (Ct. App. 1984).
6. The determination of suitability of location is not necessarily a function
solely of geography. It involves an infinite variety of considerations related
to the nature and operations of the proposed business and its impact upon
the community within which it is to be located. Kearney v. Allen, 287 S.C.
324, 338 S.E.2d 335, (1985).
7. Without sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. The fact
that protestant objects to the issuance of a permit or license is not a
sufficient reason by itself to deny the application. See 45 Am. Jur. 2d
Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors §
119 (1981).
8. S.C. Code Ann. § 61-9-340 (Supp. 1994) provides that upon determination
that the Petitioner 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 or
license after payment of the prescribed fee.
9. I conclude that the Petitioner meets all the statutory requirements for
holding a beer and wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premise beer and wine permit application of Michael W. Roberts for
Dutchman Creek Marina at Route 4, Box 283-G, Winnsboro, South Carolina be granted upon the
Petitioner'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
September 27, 1995
Columbia, South Carolina |
