SC Administrative Law Court Decisions

This matter comes before me pursuant to § 1-23-600(B) of the Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996), and § 12-60-1320 of the Revenue Procedures Act, §§ 12-60-10 et seq. (Supp. 1996), upon the Petitioner's application for an off-premises beer and wine permit for the Eckerd Drug store located at 1610 Airport Boulevard, West Columbia, South Carolina, in Lexington County. Upon receiving a written protest to the issuance of the permit, the matter was transmitted by the South Carolina Department of Revenue ("DOR") to the Administrative Law Judge Division ("ALJD") for a contested case hearing. A hearing was held on December 15, 1997. Although timely notice was given, the sole protestant failed to appear at the hearing, and Petitioner moved for dismissal of the protest on the basis of default. Petitioner also presented evidence in support of his application. Based upon the merits of the case and the default of the protestant, the application for an off-premises beer and wine permit is hereby granted.

By a preponderance of the evidence, I find:

Petitioner seeks an off-premises beer and wine permit for the Eckerd Drug store located at 1610 Airport Boulevard, West Columbia, South Carolina, in Lexington County, having filed an application (AI #115178) with DOR.

Petitioner is the district operation manager of Eckerd Corporation.

Eckerd Corporation is a Delaware corporation that operates a chain of neighborhood drug stores in the United States.

The proposed location is a drug store in a neighborhood shopping center within an incorporated area of Lexington County.

The proposed location has held an off-premises beer and wine permit for eleven years, with one violation.

Beer and wine have been sold at the same location for several years, and there is no evidence on record that the location is any less suitable for the sale of beer and wine now than when previously licensed.

The proposed location applied for a new beer and wine permit because of the merger of the store's owner, Eckerd Corporation, with J. C. Penney Company.

A grocery store with an off-premises beer and wine permit is located within the same neighborhood shopping center as the proposed location.

The Souls Harbor Full Gospel Church is located 365 feet from the proposed location.

Reverend Samson Chavis of Souls Harbor Full Gospel Church filed a written protest to the permit application.

Notice of the time, date, place, and subject matter of the hearing was given to all parties and the protestant.

DOR's motion to be excused from appearance at the hearing was granted, based upon its assertion that but for the unanswered question of the suitability of the proposed location, it would have granted the permit.

Rev. Chavis did not appear at the contested case hearing, nor did he communicate with the Court to request a continuance.

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.

Petitioner has not had a permit or license revoked in the last two years.

Petitioner is of good moral character.

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.

Because of the commercial nature of the surrounding area, the presence of other permitted locations nearby, and the past history of the location, the proposed location is suitable for the sale of beer and wine for off-premises consumption.

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

The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to § 1-23-600(B) of the Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996), and § 12-60-1320 of the Revenue Procedures Act,

§§ 12-60-10 et seq. (Supp. 1996).

Petitioner meets the requisite qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 1996) to hold a beer and wine permit in South Carolina.

"[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).

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).

In deciding whether to grant a beer and wine permit, the fact finder's discretion "does not authorize a determination of unsuitability which is wholly unsupported by any competent evidence." Smith v. Pratt, 258 S.C. 504, 507, 189 S.E.2d 301, 302 (1972).

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 may, in and of itself, 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).

A location's immediate past history of operating under a beer and wine permit serves as a salient factor in determining its current suitability for issuance of such a permit. Cf. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

The proposed location is suitable to be licensed to sell beer and wine for off-premises consumption.

The failure to appear at the hearing by the sole protestant, Samson Chavis, after receipt of timely notice amounts to default under ALJD Rule 23, and entitles Petitioner to dismissal of the protest.

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 applied for by Petitioner is granted.

AND IT IS SO ORDERED.

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STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

January ____ 1998

Columbia, South Carolina