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SC Administrative Law Court Decisions

Wesley Burbage, d/b/a Wesley's Quick Shop vs. SCDOR

South Carolina Department of Revenue

Wesley Burbage, d/b/a Wesley's Quick Shop

South Carolina Department of Revenue

Wesley Burbage, Petitioner (pro se)

Roy D. Thurston, Protestant (pro se)




This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) and S.C. Code Ann. § 61-2-260 (Supp. 1996) upon the filing of an application (AI#116172) by Petitioner, Wesley Burbage, for an off-premises beer and wine permit for a location at 1100 Cedar Lane Road, Greenville, South Carolina. Upon receipt of written protests to the application, the South Carolina Department of Revenue ("DOR") transmitted the case to the Administrative Law Judge Division for a hearing. The contested case hearing was conducted on December 15, 1997, at the Administrative Law Judge Division in Columbia. Testifying at the hearing in protest of the proposed location was Roy D. Thurston. Petitioner and Porter Lee Evatt testified in support of the application. Upon review of the relevant and probative evidence and applicable law, the application for an off-premises beer and wine permit is granted.


By a preponderance of the evidence, I find:

Petitioner seeks an off-premises beer and wine permit for a location at 1100 Cedar Lane Road, Greenville, South Carolina, having filed an application (AI# 116172) with DOR on

July 8, 1997.

Upon motion granted, DOR was excused from appearance at and participation in the contested case hearing on the ground that it would have granted the permit but for the unanswered question of the suitability of the proposed location.

Roy D. Thurston is the sole protestant to the issuance of the permit.

The Greenville County Sheriff's Office initially filed a written protest but in a letter filed with the Court on November 11, 1997, withdrew its protest against the permit.

The DOR file was incorporated into the record at the hearing.

The proposed location is located in an unincorporated area of Greenville County.

The area immediately surrounding the proposed location includes commercial and residential properties.

The proposed location is approximately 100 feet from the nearest residence.

The proposed location is approximately 1,600 feet from Monaview Elementary School.

There are numerous licensed locations in close proximity to the proposed location, several of which are nightclubs located in a shopping center across the street.

Police have responded to numerous calls in the general area of the proposed location over the past two years.

The proposed location has sold beer and wine under license for on-premises consumption for more than ten years.

The Petitioner has operated the proposed location for four months under a temporary beer and wine permit.

The proposed location is open for business from 7:00 a.m. until 11:00 p.m., Monday through Saturday.

Petitioner is the sole proprietor of the proposed location.

Porter Lee Evatt is the owner and lessor of the proposed location.

Porter Lee Evatt and Protestant Roy D. Thurston are former business partners who parted ways on bad terms.

Mr. Evatt sued and got a civil judgment against Thurston in Federal Court for wiretapping.

Mr. Thurston lives approximately two miles from the proposed location.

Mostly generalities, opinions, and conclusions, without factual support, were offered to support the Protestant's contention that issuance of the license and permit would detrimentally affect the well-being of the community.

Based upon the history of beer and wine sales at the proposed location, the location is suitable to sell beer and wine for off-premises consumption.

Petitioner is of good moral character.

Petitioner is a fit person to sell beer and wine.

Petitioner has never been cited for any violations of the alcoholic beverage control laws.

Petitioner has never had a permit to sell beer and wine revoked.

Petitioner 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.

Notice of application appeared in The Greenville News on July 11, 14 and 21, 1997.


Based upon the above Findings of Fact, I conclude as a matter of law, the following:

The South Carolina Administrative Law Judge Division has jurisdiction over this subject matter pursuant to S.C. Code Ann. §§ 61-2-260 (Supp. 1996) and 1-23-310 et seq. (1986 & Supp. 1996).

"[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed." Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

S.C. Code Ann. § 61-4-520 (Supp. 1996) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.

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. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

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).

While proximity of a church, residence, playground, or school to a proposed location by itself may be adequate grounds for denial of a beer and wine permit, there is no minimum distance requirement. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

When the relevant testimony of those opposing the permit consists of opinions, generalities, and conclusions unsupported by fact, the denial of a permit on the ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). Such unsupported allegations form an insufficient basis for denial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).

Evidence of past or pending litigation between a witness and a party is commonly admissible to demonstrate bias. North Greenville College v. Sherman Constr. Co., 270 S.C. 553, 243 S.E.2d 441 (1978).

Protestant Roy L. Thurston's opposition to the permit sought is primarily motivated by his bias against Evatt, and to a lesser degree, Burbage.

Beer and wine have been sold at the same location for several years, and no evidence suggests that the proposed location is any less suitable now than it was when previously licensed. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

The issuance of the permit will not have an adverse impact upon the surrounding community.

The proposed location is suitable and proper, considering the nature of the business and the history of the proposed location, for the issuance of a beer and wine permit.

Petitioner meets the statutory qualifications to hold a permit to sell beer and wine. S.C. Code Ann. § 61-4-520 (Supp. 1996).

Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(B).


IT IS THEREFORE ORDERED that the off-premises beer and wine permit sought by Petitioner is granted.





January 28, 1998

Columbia, South Carolina

Brown Bldg.






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