South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Deborah B. C. Middleton, d/b/a C&D Grocery Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Deborah B. C. Middleton, d/b/a C&D Grocery Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0383-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For the Protestant: No Appearance
 

ORDERS:

FINAL DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1996) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1996) for a contested case hearing. The Petitioner, Deborah B. C. Middleton, seeks an off-premise beer and wine permit for C&D Grocery Store. The Respondent made a Motion to be Excused which was granted by my Order dated July 22, 1997. A hearing was held on October 2, 1997 in the Administrative Law Judge Division.

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 Petitioner and Protestant, 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 opened C&D Grocery Store at 565 Meeting Street, Charleston, South Carolina in May 1997. She now seeks an off-premise beer and wine permit for her location.

3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 1996) 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 has no criminal record and 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 has been permitted for the off-premise sale of beer and for approximately the last forty (40) years. The Petitioner's father previously operated a convenience store at this location from approximately 1957 until his death in 1973. Since her father's death the location was leased to two different individuals, both of whom held permits for the sale of beer and wine.

7. The proposed location is suitable for an off-premise beer and wine permit.



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. 1996) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1996) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1996) 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. In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).

ORDER


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

ORDERED that the off-premise beer and wine permit application of Deborah B. C. Middleton for the C&D Grocery Store be granted upon the Petitioner's payment of the required fees and costs.

AND IT IS SO ORDERED.



______________________________________

Judge Ralph King Anderson, III

Administrative Law Judge

October 2, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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