ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and
S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997), upon Petitioner James B. Cameron's
request for a contested case hearing. Respondent South Carolina Department of Revenue
("DOR") declined to process Petitioner's application for an on-premises beer and wine permit
since the proposed location was found unsuitable by a previous order of the former Alcoholic
Beverage Control ("ABC") Commission. DOR determined that Petitioner failed to show a
material change with respect to the proposed location. After notice to all parties, a hearing was
conducted on February 6, 1998. Petitioner did not appear at the hearing; therefore, it was
conducted in his absence.
Based upon the relevant and probative evidence and the applicable law, I find and
conclude that Petitioner has shown no material change with respect to the proposed location. In
addition, I find Petitioner in default under ALJD Rule 23 for failure to appear at the February 6,
1998 hearing. I find and conclude that DOR is not required to process Petitioner's application
for a beer and wine permit.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings of fact:
1. On August 21, 1992, John E. O'Cain, Jr. ("O'Cain") filed an application with the ABC
Commission for an on-premises beer and wine permit for the premises located at 1701 Dreher
Island Road, Chapin, South Carolina.
2. The proposed location had been formerly licensed for the sale of beer and wine as
"Buck's Marina" from 1965 to 1989.
3. On February 11, 1993, the ABC Commission denied O'Cain's application for an on-premises beer and wine permit for the proposed location.
4. The 1993 Order found the proposed location was situated in a mainly residential
community.
5. The 1993 Order also found that when the proposed location had previously been licensed
for the sale of beer and wine, the surrounding area became tainted by fighting, loitering, littering
and public drinking caused by patrons.
6. On June 4, 1997, Petitioner James B. Cameron filed an application with DOR for an on-premises beer and wine permit for the same location.
7. In the O'Cain application, a map depicting the immediate area was before the ABC
Commission.
8. At the hearing on Petitioner's application, an updated map of the immediate area was
presented.
9. No material changes in the physical layout of the immediate area have occurred from the
time of the O'Cain application until the time of Petitioner's application.
10. There are no material changes with respect to the location sufficient to warrant DOR to
process Petitioner's application.
11. All parties were given notice of the time, date and place of the hearing.
12. Petitioner received notice of the hearing by certified mail, return receipt requested, on
December 22, 1997.
13. Petitioner failed to appear at the hearing or communicate with the Court to request a
continuance.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction of this case
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq.
(1986 & Supp. 1997).
2. Petitioner is in default under ALJD Rule 23 for failure to appear at the February 6, 1998
hearing.
3. Pursuant to ALJD Rule 23, an Administrative Law Judge may dismiss a case adversely to
a defaulting party.
4. DOR shall not process an application for a beer and wine permit when the location
involved has been declared by the ABC Commission to be improper unless and until the
applicant can affirmatively show that some material change with respect to the location has
occurred. 23 S.C. Code Ann. Regs. 7-96 (1976).
5. A "material change" is any meaningful change to any factor relevant to the question of
whether the location for a beer and wine permit is a proper location. See S.C. Code Ann. § 61-4-520(6) and (7) (Supp. 1997). Any factors showing community impact should be considered. See
Palmer v. S.C. Alcoholic Beverage Control Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
6. There are no material changes with respect to the proposed location's proximity to
residential areas.
7. There are no material changes with respect to the proposed location as to any factors
warranting DOR to process Petitioner's application.
ORDER
IT IS THEREFORE ORDERED that DOR shall not process the application filed by
Petitioner for an on-premises beer and wine permit for the location at 1701 Dreher Island Road,
Chapin, South Carolina.
AND IT IS SO ORDERED.
____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
March 30, 1998
Columbia, South Carolina |
