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 off-premises beer and wine
permit for 116 Whittaker Parkway, Orangeburg, South Carolina, filed by John A. Cunningham
with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR").
A hearing was held on November 13, 1995. The issue considered was the suitability of the
proposed business location. 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 off-premises beer and wine permit for 116 Whittaker Parkway,
Orangeburg, South Carolina, having filed an application with DOR, AI #104356.
(2) Notice of the time, date, place, and subject matter of the hearing was given to all
parties and protestants.
(3) The hearing was scheduled to commence at 2:00 p.m., November 13, 1995.
At 2:15 p.m., the hearing began.
(4) No protestants were present at the hearing to testify in opposition to the application,
although Ida T. Haywood, Principal of Robert E. Howard Middle School previously filed a
written protest to the application. Ms. Haywood did not make contact with the Court to request
a continuance nor did she inform the Court that she would not appear.
(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) The DOR file was incorporated into the record of the hearing.
(7) Applicant operates the proposed location as a convenience store and gas station.
(8) The proposed location has been operated as a convenience store and gas station under
previous management for approximately ten years and has been licensed to sell beer and wine
during that same period. Petitioner was employed as store manager of the proposed location
during much of that time.
(9) There are no churches or residences within close proximity of the proposed location.
(10) Robert E. Howard Middle School is approximately 798 feet from the proposed
location, separated by Highway 33 and Belleville Road.
(11) No evidence was introduced to indicate that the proposed location, while previously
licensed, adversely affected the school or its students or faculty.
(12) The applicant is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained her 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 past history of a similar
business operating at the same location without evidence of incident or nuisance and the lack of
any evidence to suggest that future operation of the location will differ from the past
management.
(6) Applicant meets the statutory requirements for issuance of a beer and wine permit.
(7) Protestant's failure to appear constitutes default under ALJD Rule 23.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Petitioner an off-premises beer and
wine permit applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
November 30, 1995
Columbia, South Carolina |
