ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Johnnie T. Frey, Jr. (Frey) of Pauline, South Carolina filed with the South
Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer
and wine permit for 902 Gwinn Mill Road, Pauline, South Carolina. Deputy John Hudson and
Deputy Crystal Howell of the Spartanburg County Sheriff's Department filed a protest seeking to
prevent DOR from granting the license. 23 S.C. Code Regs. 7-90 (Supp. 1996) requires a
hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann.
§§ 1-23-600(B) and 1-23-310 (Supp. 1996). The evidence and relevant factors require granting
the permit.
II. Issue
Does Frey meet the requirements for obtaining an on-premises beer and wine permit?
III. Analysis
1. Positions of Parties:
Frey asserts he meets all statutory requirements. DOR states that since a protest prevents the
granting of a permit until a hearing is held, DOR awaits the outcome of that hearing.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
a. General
1. On or about July 29, 1996, Frey filed an application with the Department of Revenue for an
on-premises beer and wine permit.
2. The application is identified by DOR as AI 109910.
3. The proposed business location and the place where the beer and wine permit will be utilized is
902 Gwinn Mill Road, Pauline, South Carolina.
4. The business will operate under the name of Johnny's Place.
5. A protest to the application was filed by Deputy John Hudson and Crystal Howell of the
Spartanburg County Sheriff's Department.
6. Except for the protest, DOR would have issued the permit.
7. The hearing was held January 28, 1997, with notice of the date, time, place and subject matter
of the hearing given to the applicant, DOR, and the protestants.
b. Moral Character
8. The State Law Enforcement Division (SLED) investigated the applicant's criminal background.
9. The SLED report revealed no criminal violations.
10. A previous criminal investigation report demonstrates that in 1991 Frey pled guilty to driving
under the influence and paid a $400 fine.
11. The applicant's actions and conduct are insufficient to conclude Frey lacks good moral
character for purposes of a beer and wine permit.
12. The applicant is of good moral character.
c. Legal Resident and Principal Place of Abode
13. Frey was born in South Carolina and has resided in South Carolina since his birth.
14. Frey holds a valid South Carolina driver's license.
15. Frey currently resides at 906 Gwinn Mill Road, Pauline, South Carolina, and resided in South
Carolina for more than 30 days prior to filing the application for a beer and wine permit.
16. Frey is a legal resident of the United States and South Carolina, has held such status for more
than 30 days prior to the application, and has held a principal place of abode in South Carolina for
more than 30 days prior to filing the application.
d. Prior Revocation Of Beer or Wine Permit
17. Frey has never had a beer and wine permit revoked.
e. Age
18. Frey's date of birth is October 23, 1940.
19. Frey is over twenty-one years of age.
f. Proposed Location
20. The prior owner of the existing location operated with an on-premises beer and wine permit
for several years.
21. The applicant will continue the same business as the prior owner.
22. There is no evidence of reported criminal activity at the proposed location.
23. The evidence does not demonstrate that the proposed location will present a problem for the
operation of church activities in the area.
24. The location is adequately served by the traffic route of Gwinn Mill Road.
25. The proximity to residences consists of one residence across the street, and the applicant's
residence with neither residence visible from the proposed location due to a dirt bank.
26. The evidence does not demonstrate that the proposed location will present a problem to
residences in the area.
27. The area is predominately rural.
g. Notice
28. Notice of the Frey application was published in the Spartanburg Herald-Journal, a
newspaper published and distributed in Spartanburg County, with notice published on August 2,
9, and 16, 1996.
29. Notice of the Frey application appeared at least once a week for three consecutive weeks in a
newspaper most likely to give notice to interested citizens of Pauline.
30. Frey gave notice to the public by displaying a sign for fifteen days at the proposed business.
31. Frey gave notice of the application by the required advertising by newspaper and display of
signs.
3. Discussion
The applicant satisfies the requirements for an on-premises beer and wine permit. It is significant
that the prior owner at the existing location operated with an on-premises beer and wine permit
for several years. Nothing in the evidence indicates any problem with the location during that
time period, and in this instant case, the new owner will continue the former business. There is no
evidence of criminal activity at the location nor of any traffic concerns at the location.
Additionally, the distances to churches, schools and residences are sufficient not to present a
problem to conducting worship services, educational activities or residential living.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. Driving under the influence is not a crime of moral turpitude. State v. Hall, 306 S.C. 293, 411
S.E.2d 441 (Ct. App. 1991).
2. The applicant possesses sufficient good moral character to obtain a beer and wine permit. S.C.
Code Ann. § 61-9-320(1) (Supp. 1995).
3. The applicant is a legal resident of the United States and has been a legal resident of South
Carolina for 30 days prior to filing the application and has his principal place of abode in South
Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995).
4. The applicant has not had a beer or wine permit revoked within two years of the date of the
current application. S.C. Code Ann. § 61-9-320(4) (Supp. 1995).
5. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995).
6. The proximity of a proposed location to residences, churches, schools, and playgrounds should
be considered in reviewing a permit application. S.C. ABC Comm'n v. William Byers, 305 S.C.
243, 407 S.E.2d 653 (1991).
7. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann. §
61-9-320(6) (Supp. 1995).
8. The applicant gave proper notice of the application by way of newspaper and the display of
signs. S.C. Code Ann. § 61-9-320(7) and (8) (Supp. 1995).
9. The applicant meets the requirements for the issuance of a beer and wine permit.
IV. ORDER
DOR is ordered to grant Frey's application for an on-premises beer and wine permit at 902 Gwinn
Mill Road, Pauline, South Carolina.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative Law Judge
This 29th day of January, 1997
Columbia, South Carolina |
