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 applications for an on-premises beer and wine
permit for 321 By Pass, Blackstock, South Carolina, filed by John D. Tyler 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) Petitioner seeks an on-premises beer and wine permit for a location at 321 By Pass,
Blackstock, South Carolina, having filed an application with DOR, AI #104605.
(2) Petitioner has owned and operated a small family grocery and convenience store in
Rock Hill, known as the Lesslie Mart, for approximately twenty years, and has been licensed to
sell beer and wine for off-premises consumption from that location for the past fifteen years
without any violations cited.
(3) The proposed location is one of ten separate businesses located in a mini-mall known
as the Horseshoe. The Horseshoe is owned by Cynthia McDonald and contains ten video poker
parlors. Petitioner leases one of the ten business premises, known as the Ace in the Hole, from
McDonald.
(4) Petitioner intends to sell beer, wine, sandwiches and snacks to patrons playing video
poker at his establishment. None of the other nine businesses are licensed to sell beer and wine.
(5) The proposed location is in a rural area of Fairfield County, near the Chester County
line on Highway 321 By Pass.
(6) There are no schools, churches, or playgrounds in close proximity to the proposed
location.
(7) The only residence within 1/2 mile of the proposed location, is the home of Shirley
Featherstone, an employee of the Horseshoe who testified that she does not oppose the issuance
of the permit.
(8) There are no other licensed locations within two miles of the proposed location.
(9) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant and protestants (by certified mail) and DOR.
(10) 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.
(11) Although Cynthia Montgomery, Carolyn Montgomery, and Pamela Sweet filed
written protests to the application, no protestants were present at the hearing to testify in
opposition to the application. None of the Protestants made contact with the Court to request a
continuance or to inform the Court that they would not appear.
(12) 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.
(13) The applicant has not had a permit/license revoked in the last two years.
(14) The applicant is of good moral character.
(15) 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 rural nature of the area,
the support of the only resident in proximity to the location, and the absence of any evidence that
the location is unsuitable.
(6) Petitioner meets the statutory requirements for issuance of a beer and wine permit.
(7) Protestants' failure to appear constitutes default under ALJD Rule 23.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Petitioner the on-premises beer and
wine permit applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 26, 1995
Columbia, South Carolina |
