ORDERS:
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) on the application of Thomas Michael Hanna,
d/b/a The River, for an on-premises beer and wine permit for the premises at 3709 Smith McGee
Road in Iva, South Carolina. Respondent South Carolina Department of Revenue ("DOR") does not
oppose Petitioner's application, and this tribunal granted DOR's motion to be excused from
appearing at the hearing. After notice to the parties, a hearing was conducted on April 6, 1998. Lt.
Rebecca Fachting, of the Anderson County Sheriff's Department, protestant of record, failed to
appear at the hearing of this matter, thereby waiving her protest.
Based upon the relevant and probative evidence and the applicable law, I find and conclude
that the protestant is in default pursuant to ALJD Rule 23 for failure to appear at the April 6, 1998
hearing, and her protest is hereby dismissed. In addition, I find the proposed location is suitable for
the issuance of an on-premises beer and wine permit and that Petitioner is of good moral character.
The beer and wine permit is hereby granted.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings of fact:
1. Petitioner, Thomas Michael Hanna, submitted an application for an on-premises beer
and wine permit with DOR on October 7, 1997, for the premises located at 3709 Smith McGee
Road, Iva, South Carolina.
2. Petitioner has been leasing the proposed location from Shelley Bowman since
January 1, 1998.
3. The proposed location will operate as a lounge to be known as "The River."
4. The proposed location was previously licensed for the sale of beer and wine as "Last
Chance Saloon" from 1988 to 1991, with no permit violations.
5. Petitioner has had no criminal convictions within the past ten years and he is a person
of good moral character.
6. Although Lt. Rebecca Fachting submitted a written objection to Petitioner's moral
character, the only evidence in the record relating to moral character consists of past criminal
convictions over ten years old.
7. Petitioner is a legal resident of the United States.
8. Petitioner has resided in and maintained his principal place of abode in South
Carolina for more than thirty days before applying for a permit.
9. Petitioner has never been cited for any violations of the alcoholic beverage control
laws, and he has never had a permit to sell beer and wine suspended or revoked.
10. Petitioner is over twenty-one years of age.
11. Notice of application for the beer and wine permit was published in The Journal, a
newspaper published in Williamston, South Carolina, on October 15, 22, and 29, 1997. Notice was
also posted at the proposed location for the time period required.
12. But for the protest filed, DOR would have issued the permit.
13. The proposed location is surrounded by woods in a rural area. Only a few residences
are within close proximity to the location.
14. The nearest residence is approximately 100 feet from the rear of the proposed
location.
15. There are no churches, schools or playgrounds within close proximity to the proposed
location.
16. The lounge will be open Monday through Saturday and will close at 1:00 a.m. each
business day.
17. The location is suitable for the sale of beer and wine for on-premises consumption.
18. All parties were given notice of the date, time and place of the hearing.
19. The protestant, Lt. Rebecca Fachting, received notice of the hearing by certified mail,
return receipt requested, on February 26, 1998.
20. Lt. Fachting failed to appear at the hearing or communicate with the Court to request
a continuance of the hearing.
21. In its Agency Transmittal, DOR advised this tribunal that Petitioner appears to have
met all statutory requirements, and but for the protest, the Department would have issued the permit.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. Jurisdiction is vested with the Administrative Law Judge Division 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. The protestant, Lt. Rebecca Fachting, is in default under ALJD Rule 23 for failure
to appear at the April 6, 1998 hearing.
3. Pursuant to ALJD Rule 23, an Administrative Law Judge may dismiss a matter
adversely to a defaulting party.
4. "[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).
5. South Carolina Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the
issuance of a beer and wine permit. Included among the factors for consideration is the suitability
of the location.
6. As trier of fact, the Administrative Law Judge is authorized to decide the fitness or
suitability of the proposed business location 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). Although "proper location" is not statutorily defined, broad discretion has been vested
in the finder of fact 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).
7. The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve 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).
8. While proximity of a residence to a proposed location by itself may be adequate
grounds for denial of a beer and wine permit, there is no minimum distance requirement. See S.C.
Code Ann. § 61-4-520(7) (Supp. 1997); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407
S.E.2d 653 (1991).
9. The proposed location is suitable for the sale of beer and wine.
10. The evidence of Petitioner's past criminal convictions has no probative value due to
the amount of time that has passed since the date of the convictions. Cf. Rule 609(b), SCRE.
11. The applicant meets all other statutory requirements for the issuance of an on-premises beer and wine permit.
ORDER
IT IS THEREFORE ORDERED that the protest to Petitioner's application for an on-premises beer and wine permit is dismissed.
IT IS FURTHER ORDERED that Petitioner's application for an on-premises beer and wine
permit for 3709 Smith McGee Road, Iva, South Carolina, is granted.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April _____, 1998
Columbia, South Carolina |
