ORDERS:
ORDER AND DECISION
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. 1993) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1993) for
a contested case hearing. The Applicant, Roy M. Sullivan, seeks a retail dealers' license at 319-B
Green Street, Belton, South Carolina. A hearing was held on November 7, 1995, at the office of
Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The License requested by the Applicant is denied.
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 a retail dealers' license for location at 319-B
Green Street, Belton, South Carolina.
3. The proposed location is 528 feet from the Freedom Faith Baptist
Church.
4. The Petitioner seeks this retail dealers' license in a primarily residential
area. The area is often congested both with pedestrian and vehicular
traffic. People commonly loiter in the parking lot of the proposed
location.
5. The proposed location is in a high crime area of Belton, South
Carolina. Drug activity is prolific in the area.
6. The Proposed location has been permitted for the on-premise sale of
beer and wine in the past. However, the location has been closed for
a number of years and in that time the nature of the community has
changed. The difficulties with the increase of crime and alcohol and
drug use have negatively impacted the neighborhood. The community
leaders are now making considerable efforts to revitalize this
community.
7. The proposed location is unsuitable for a retail dealers' license
because of its proximity to residences, the unacceptable burden upon
law enforcement to police the location and resulting negative impact
that would occur upon the local community.
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. § 61-3-420 (Supp. 1994) sets forth the requirements
for the issuance of a retail dealers' license. Furthermore, S.C. Code
Ann. § 61-3-490 (Supp. 1994) establishes the requirements for an
applicants notice of their intent to apply for a retail dealers' license.
4. An application for a retail dealers' license shall be denied if the
standards of S.C. Code Ann. § 61-3-730 (Supp. 1994) are not met.
5. 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, 281
S.E.2d 118 (1981).
6. As the trier of fact, the Administrative Law Judge is authorized to
decide the fitness or suitability of the proposed business location of a
Petitioner for a permit to sell beer and wine using broad, but not
unbridled, discretion. Byers v. South Carolina ABC Commission, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
7. 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).
8. Permits and licenses issued by this state for the sale of liquor, beer and
wine are not property rights. They are, rather, privileges granted in
the exercise of the state's police power to be used and enjoyed only so
long as the holder complies with the restrictions and conditions
governing them. Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26
S.E.2d 22 (1943).
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED AND ADJUDGED that the application of Roy M. Sullivan for this retail dealers'
license be denied.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
January 2, 1996 |
