South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
John J. Woodard, d/b/a Circle W Bar vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
John J. Woodard, d/b/a Circle W Bar

Respondents:
South Carolina Department of Revenue and Ralph E. Pelfrey
 
DOCKET NUMBER:
95-ALJ-17-0767-CC

APPEARANCES:
For the Petitioner: Kenneth E. Allen, Esquire

For the Respondent/SC Department of Revenue and Taxation:
No Appearance

For the Respondent/Pelfrey: J. Michael Turner, Esquire

For the Other Protestants: Pro Se
 

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. 1995) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1995) for a contested case hearing. The Petitioner, John J. Woodard, seeks an on-premise beer and wine permit for the Circle W Bar. A hearing was held on February 20, 1996, at the office of Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The application requested by the Petitioner is denied.



FINDINGS OF FACT


Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, considering 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 an on-premise beer and wine permit for the Circle W Bar at Route 1 Box 266 AB, Ware Shoals, South Carolina. The proposed location is a small building located next to the Petitioner's home.

3. The Petitioner seeks this beer and wine permit in a quiet, rural residential area. The local community is composed of many elderly individuals. Furthermore, there are several widows who live alone near the proposed location.

4. The proposed location is adjacent to Highway 25. It is in the western end of Laurens County. The Sheriff's office could provide the area with adequate law enforcement. However, currently the resources of the Department are focused on other areas of the county. Permitting the proposed location would require a shift in the current law enforcement strategy of the Department.

5. The proposed location is unsuitable for a beer and wine permit because of its proximity to the nearby residences, the burden upon law enforcement and the 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. 1995) 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. 1995) 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. § 61-9-320 (Supp. 1995) sets forth the requirements for the issuance of an off-premise beer and wine permit.

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in deciding the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595, 281 S.E.2d 118, 119 (1981).

5. As the trier of fact, the Administrative Law Judge is authorized to determine 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).

6. 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).

7. Permits and licenses issued by the state for sale of liquor, beer and wine are not rights or property but are, rather, privileges granted in the exercise of the state's police power to be used and enjoyed only if the restrictions and conditions governing them are followed. 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 John J. Woodard for an on-premise beer and wine permit is denied.





________________________________

Ralph King Anderson, III

Administrative Law Judge

March 4, 1996

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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