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 601 East Gay Street, Lancaster, South Carolina, filed by Sam D. Reid with the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). DOR received
written protests to the application and transmitted the matter to the Administrative Law Judge
Division (hereinafter referred to as "ALJD") for a contested case hearing. A hearing was held on
October 23, 1995, at the Lancaster County Courthouse, in Lancaster, South Carolina. 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 601 East
Gay Street, Lancaster, South Carolina, having filed an application with DOR, AI #104413.
(2) Applicant has owned and operated the proposed location as a small family grocery
and grill for approximately thirty years, and has been licensed to sell beer and wine for on-premises consumption during that entire period.
(3) Applicant has had his permit repeatedly renewed biennially since first being licensed to
sell beer and wine at the proposed location. The permit was renewed for 1995-96, without
opposition, but because of health problems, Petitioner surrendered the renewed permit to DOR
and received a refund for the renewal fee. Subsequently, Petitioner's health improved and he
reapplied for the permit for 1995-96. Because of the written protests received by DOR, a
contested case hearing was required to be conducted by the ALJD. None of the previous
applications or renewals were ever protested.
(4) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant and protestants (by certified mail) and DOR.
(5) DOR did not appear at the hearing; however, DOR filed the following statement with
the Court:
But for the unanswered question of suitability of location,
the Department would have issued this licenses/permit. As the
department has no evidence concerning suitability of this location
it does not intend to appear at the hearing. Its failure to appear at
the hearing does not indicate a waiver of its rights as a party to this
action, and is not to be considered a default under Rule 23 of the
Administrative Law Judge Division. If the Petitioner appeals the
Court's decision in this matter, and no additional parties have been
admitted, the department will actively participate as a party in the
appeal.
(6) Although Lancaster City Police Chief Benny Webb and Frances Shannon of the
Eastside Crime Watch had previously filed written protests to the application, no protestants were
present at the hearing to testify in opposition to the application. Neither protestant made contact
with the Court to request a continuance or inform the Court that they would not appear.
(7) Petitioner has never been cited for any violation of ABC law.
(8) The proposed location will be operated in the same manner as it has over the past
several years.
(9) The applicant is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
(10) The applicant has not had a permit/license revoked in the last two 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) 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, 281 S.C.
566, 316 S.E.2d 705 (Ct. 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 the
location as a licensed premises, the continued management of the location by Petitioner, and the
absence of any evidence that the location is unsuitable.
(6) Applicant meets the statutory requirements for issuance of a beer and wine permit and
retail liquor license.
(7) Protestants' failure to appear constitutes default under ALJD Rule 23.
(8) Pursuant to ALJD Rule 29(C), a party may move for reconsideration of this Order by
filing a written request within ten (10) days after notice of this Order is received. The judge may
order a rehearing or deny the request. No action by the judge within thirty (30) days of the filing
of the request is deemed a denial of the motion.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Applicant the on-premises beer and
wine permit applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 26, 1995
Columbia, South Carolina |
