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SC Administrative Law Court Decisions

Helen Duncan, d/b/a Fire House Cafe vs. SCDOR

South Carolina Department of Revenue

Helen Duncan, d/b/a Fire House Cafe

South Carolina Department of Revenue

Kenneth E. Allen, Esquire

For Petitioner

Protestants: Rev. Victor C. Wilson

Captain Doug Taylor

York County Sheriff's Department



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. (Supp. 1997) for a hearing on the application of Helen Duncan. Petitioner seeks an on-premises beer and wine permit for a restaurant located at 2760 Highway 21, Fort Mill, South Carolina.

After timely notice to the parties and protestants, a hearing was held on April 16, 1998, at the Administrative Law Judge Division in Columbia, South Carolina. The protestants of record, Rev. Wilson and Captain Taylor, did not move to intervene as parties. Pursuant to its Motion to Be Excused, the Department was excused from appearing at this hearing, and would have granted the permit but for the protests.

The issues considered at the hearing were: (1) the Petitioner's eligibility to hold a beer and wine permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The application for the on-premises beer and wine permit is hereby granted.


Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

Petitioner seeks an on-premises beer and wine permit for a restaurant located outside the city limits of Fort Mill, South Carolina at 2760 Highway 21, York County.

The proposed location is situated in a rural area six miles from Fort Mill.

Petitioner leases the building that houses the restaurant from Lucy Ransom. This location was previously licensed with a beer and wine permit as M&K Enterprises, Inc. from May 7 through October 17, 1997.

Petitioner's restaurant serves lunch and dinner from 11:00 a.m. to 11:00 p.m., Monday through Friday, and 11:00 a.m. to 12:00 a.m. on Saturday.

Petitioner is of good moral character. The State Law Enforcement Division completed a criminal background investigation of the Petitioner. The SLED report revealed no criminal violations, and the record before this tribunal does not indicate that Petitioner has engaged in acts or conduct that imply the absence of good moral character.

Petitioner is at least twenty-one years of age, a U.S. citizen, and a citizen of the State of South Carolina. Furthermore, Petitioner has maintained her principal residence in the state for at least thirty days prior to the date of making application for an on-premises beer and wine permit.

Petitioner has not had a beer and wine permit or alcoholic beverage license revoked within two years of the date of her application.

Notice of the application appeared in the Fort Mill Times, a newspaper of general circulation in the area of the proposed location, once a week for three consecutive weeks, and notice was posted at the proposed location for fifteen days.

Rev. Wilson morally opposes the sale of beer and wine. He also believes that the location is too close to the church and will create a safety hazard. Captain Taylor did not have any specific objections to the licensing of the proposed location. However, it is the policy of the York County Sheriff's Department to offer assistance when any member of the community protests an alcohol permit or license.

The Department does not oppose Petitioner's application and would have issued the permit but for the protests.


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

S.C. Code Ann. section 61-2-260 (Supp. 1997) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this case.

S.C. Code Ann. section 61-4-520 (Supp. 1997) establishes the criteria for the issuance of a beer and wine permit.

Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law Judge Division in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

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

The determination of the suitability of a location is not necessarily a function of geography alone. It involves an infinite variety of considerations related to the nature and operations 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); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

There was not a sufficient evidentiary showing that the present location is unsuitable or that the issuance of an on-premises beer and wine permit would affect residents' safety, create traffic problems, or have an adverse impact on the community.

The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not supported by facts. 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).

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 the issuance of a permit or license is protested is not a sufficient reason by itself to deny the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. The objections raised by Rev. Wilson are mainly rooted in his moral objection to the proposed location selling alcoholic beverages. This tribunal acknowledges his opposition to the issuance of the permit, as well as his right to hold such sentiments. However, mere aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of a permit request. See 48 C.J.S. Intoxicating Liquors §§ 118, 119, 121 (1981). Therefore, the arguments proffered by the protestant do not constitute a sufficient basis on which to deny Petitioner's request.


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

ORDERED that the Department of Revenue shall continue processing Petitioner's application for an on-premises beer and wine permit for 2760 Highway 21, Fort Mill, South Carolina.




Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

May 1, 1998

Columbia, South Carolina

Brown Bldg.






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