South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
JSJ Enterprises, LLC, d/b/a Abbey’s Alley vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
JSJ Enterprises, LLC, d/b/a Abbey’s Alley

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
03-ALJ-17-0277-CC

APPEARANCES:
P. Stevens Bowles, Jr., for the Petitioner, Pro Se

Dana R. Krajack, Esquire, for the Respondent

Protestant: Rev. Bobby Cutter
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-4-520, 61-4-525, 61-2-260 and 12-4-320 (Supp. 2002) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit for the location at 113 Washington Street, Abbeville, South Carolina. This matter is presently before the Division because of a protest by a concerned citizen regarding the suitability of the location. The Respondent moved to be excused, since but for the protest the Department would have issued the permit. This motion was denied. After notice to the parties and Protestant, a hearing was conducted on September 10, 2003, at the Division in Columbia, South Carolina. At the hearing, the parties and Protestant were present as indicated.

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

1. The Petitioner seeks an on-premises beer and wine permit for the location known as

Abbey’s Alley, located at 113 Washington Street, Abbeville, South Carolina. This location is currently a coffee shop and general mercantile store, and the Petitioner seeks to offer his customers the option of having beer and wine available with their meals, or after plays at the Opera House.

2. The Respondent, South Carolina Department of Revenue, determined that the

location and the Petitioner met all statutory requirements and would have granted the permit but for the protest as to suitability of the location. These facts were stipulated to at the beginning of the hearing.

3. The location is in the downtown area of Abbeville in a commercial district. There

are churches in the area, but not within the statutory proximity.

4. Reverend Cutter opposed the permit. He is concerned about the harm that beer and

wine could cause in the community, and about the potential increase in accidents caused by driving under the influence of alcohol. He cited numerous statistics to show the dangers of alcohol.

5. Notice of the application appeared in The Press and Banner, a newspaper

of general circulation in the area of the proposed location, once a week for three consecutive weeks and notice was posted at the proposed location for fifteen days.

6.Although the Protestant was very passionate and articulate in his opposition, the fact

remains that the statute that this Court must consider speaks in terms of the suitability of the location and the applicant only. There was no specific testimony or evidence presented that the location at 113 Washington Street, or the applicant JSJ Enterprises, LLC, was unsuitable.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 has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002).

2.The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3.Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

4.It is also the fact finder’s responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and weight of any testimony offered.

5.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 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). Any evidence adverse to the location may be considered. Byers v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of other licensed locations in the immediate vicinity, as well as the existence of small children in the area.

6.In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

7.Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not a sufficient reason alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).

8.S.C. Code Ann. § 61-4-525 (Supp. 2002) provides that a person residing in the county in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if he files a written protest.

9.Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).

10.After considering all the relevant factors, I find that the restaurant’s location is suitable for the on-premises sale of beer and wine. There is nothing to indicate that the Petitioner would operate his business in an unlawful manner. The Protestant’s convictions are strongly held; however, his purely moral and religious objections do not specifically address the suitability of the location or the applicant.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the South Carolina Department of Revenue grant the Petitioner’s application for an on-premises beer and wine permit.

AND IT IS SO ORDERED.



___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

September 10, 2003

Columbia, South Carolina


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