ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and
§§ 1-23-310, et seq. (1986 & Supp. 1995) upon application for an on-premises beer and wine
permit for 404 Green Avenue, Greenville, South Carolina, filed by John H. Sullivan with the
South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A
hearing was held on May 14, 1996. The issue considered was the suitability of the proposed
business location. Although timely notice was given, no protestants appeared at the hearing.
Petitioner moved for dismissal of the protests on the basis of default. Motion is granted.
The permit is hereby granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) The applicant seeks an on-premises beer and wine permit for 404 Green Avenue,
Greenville, South Carolina, having filed an application with DOR, AI #106758.
(2) Notice of the time, date, place, and subject matter of the hearing was given to
Petitioner and Protestants by certified mail, and to DOR by first class mail.
(3) DOR did not appear at the hearing, having been excused from participation upon
motion granted. But for the protests, DOR would have issued the permit
(4) The hearing was scheduled to commence at 9:00 a.m., May 14, 1996.
At 9:25 a.m., the hearing began.
(5) No protestants were present at the hearing to testify in opposition to the application,
although Mamie A. Watkins of the Green Avenue Area Civic Association and Rev. B.B. Dubose
previously filed written protests to the application. The protestants did not contact the Court to
request a continuance or inform the Court that they would not appear.
(6) Applicant operates the proposed location as a convenience store and gas station.
(7) The proposed location operated as a tavern from 1977 until November, 1995 and was
licensed to sell beer and wine during that period.
(8) Petitioner previously operated the proposed location from 1979-1981 as
"Heyward's."
(9) Petitioner is a member of Green Avenue Area Civic Association and a lifetime
resident of the community.
(10) No evidence was introduced to indicate that the proposed location, while previously
licensed, adversely affected the surrounding community.
(11) 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.
(12) The applicant has not had a permit/license revoked in the last two years.
(13) The applicant is of good moral character.
(14) 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. 1995) 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. 1995) 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) Protestants' failure to appear constitutes default under ALJD Rule 23.
ORDER
IT IS THEREFORE ORDERED that DOR issue to Petitioner an on-premises beer and
wine permit applied for.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May 15, 1996
Columbia, South Carolina |
