ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1994) upon an application for an off-premises beer and wine permit for 530 Oates Street, Rock Hill, South Carolina, by Emmett C.
Jones with the South Carolina Department of Revenue and Taxation (hereinafter referred to as
"DOR"). A hearing was held at the Lancaster County Courthouse, in Lancaster, South Carolina,
on October 23, 1995. Notice of the hearing was given by first class mail to DOR and by certified
mail to Petitioner and Protestants. Petitioner failed to appear or contact the Court to request a
continuance. The hearing was conducted in Petitioner's absence. Based upon the evidence
presented, the permit application is denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an off-premises beer and wine permit for a location at 530 Oates
Street, Rock Hill, South Carolina, having filed an application with DOR, AI #103674.
(2) Notice of the time, date, place, and subject matter of the hearing was given to
Petitioner, Protestants, and DOR.
(3) Notices of Hearing were sent to Petitioner via certified mail to the proposed location,
530 Oates Street, Rock Hill, South Carolina, 29730, mailed September 19 and 27, 1995. Each
letter was returned undelivered. Upon the return of the above notices, the ALJD attempted to
contact Petitioner by telephone at the business and residence numbers, which were listed on
DOR's Agency Transmittal form, on September 28, October 3, 16, and 20, 1995. Messages were
left each time for Petitioner to contact the ALJD regarding this case. Petitioner never returned
any of the calls or otherwise attempted to correspond prior to the hearing with the ALJD.
(4) Notice of Hearing was sent to Petitioner via certified mail to his residence, 118 Oak
Street, Chester, South Carolina. The Notice was received, as evidenced by the return receipt
signed and dated October 19, 1995.
(5) The hearing was conducted in the Petitioner's absence.
(6) The DOR file, including Petitioner's application, was incorporated into the record of
the hearing without objection.
(7) The following persons appeared as protestants and testified in opposition to the
application at the hearing: Ms. Alicia F. Smith, an area resident and Chairman of the Flint Hill
Community Association, and Ms. Nancy Anderson, an area resident.
(8) The proposed location is located within the municipal boundaries of the City of Rock
Hill, in York County.
(9) The proposed location has operated as a community grocery and convenience store
for at least forty (40) years, having never been licensed to sell beer or wine.
(10) The proposed location is in close proximity to numerous residences and, in the past,
has catered to customers living within walking distance of the location.
(11) There are four (4) churches located within 1/4 mile of the proposed location, the
closest being St. Matthew AME Zion Church, located 286' from the proposed location.
(12) Numerous children live and play in the immediate vicinity of the proposed location.
(13) The proposed location is within a residential area plagued by teenage loitering,
violence, drug distribution and use, and other problems.
(14) No other commercial businesses are in close proximity to the proposed location.
(15) DOR and Protestants oppose the issuance of the beer and wine permit sought
because of the proximity of residences and churches, the concern for the safety of children, and
the fear that beer and wine sales would aggravate existing crime problems in the area.
(16) Applicant is over twenty-one (21) years of age.
(17) Petitioner is a citizen of the State of South Carolina, maintaining his principal
residence in South Carolina for more than thirty days.
(18) Applicant has not had a permit revoked in the last two years.
(19) Petitioner is of good moral character.
(20) 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) The South Carolina Administrative Law Judge Division is empowered to hear this
case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and 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 before
issuance of a beer and wine permit.
(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 proposed location is unsuitable for the sale of beer and wine because of the
residential nature of the community, the close proximity of residences and churches, and the
existence of numerous children living in the area. The proximity of residences or churches is a
proper ground by itself to deny a permit to a location. William Byers v. S.C. A.B.C. Commission,
305 S.C. 243, 407 S.E.2d 476 (Ct. App. 1984).
(5) Petitioner is in default, and dismissal of the case adversely to Petitioner pursuant to
ALJD Rule 23 warranted.
(6) 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 deny the off-premises beer and wine permit
applied for.
_____________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 26, 1995
Columbia, South Carolina |
