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, Sara F. Todd, seeks an on-premise beer and wine permit for Caretta Caretta. The Respondent
made a Motion to be Excused which was granted by my Order dated
September 4, 1996. A hearing was held on Wednesday, October 16,
1996, at the Administrative Law Judge Division. No one appeared on
behalf of the Protestant.
The Permit requested by the Petitioner is approved.
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. The Petitioner seeks an on-premise beer and wine
permit for Caretta Caretta at 2805 Hwy North 17,
Mt. Pleasant, South Carolina.
2. 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.
3. The qualifications set forth in S. C. Code Ann.
61-9-320 (Supp. 1995) concerning the residency and
age of the Petitioner are properly established.
Furthermore, the Petitioner has not had a permit or
license revoked within the last two years and
notice of the application was lawfully posted both
at the location and in a newspaper of general
circulation.
4. The Petitioner is of sufficient moral character to
receive a beer and wine permit.
5. The proposed location is not unreasonably close to
any church, school or playground.
6. The proposed location is suitable for the sale of
beer and wine on-premise.
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 on-premise
beer and wine permit.
4. 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).
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. 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 by itself to deny
the application. See 45 Am. Jur. 2d Intoxicating
Liquors 162 (Supp. 1995); 48 C.J.S. Intoxicating
Liquors 119 (1981).
8. The Petitioner meets the statutory requirements for
holding a beer and wine permit at the proposed
location.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is
hereby:
ORDERED that the on-premise beer and wine permit application
of Sara F. Todd for Caretta Caretta at 2805 Hwy North 17, Mt.
Pleasant, South Carolina be granted upon the payment to the
Department of the required fee and cost by the Petitioner.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
October 17, 1996
Columbia, South
Carolina |
