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 Petitioner's application for renewal of an on-premises beer and wine permit and sale and consumption (minibottle) license for a private club at
3434 Cinema Drive in Anderson, 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 24, 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 24, 1998
hearing, and her protest is hereby dismissed. In addition, I find the proposed location is suitable for
the renewal of an on-premises beer and wine permit and minibottle license. The beer and wine
permit and minibottle license renewals are hereby granted.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings of fact:
1. Petitioner, Bobby R. Buchanan, submitted an application for renewal of an on-premises beer
and wine permit and a minibottle license with DOR on November 24, 1997, for the premises located
at 3434 Cinema Drive in Anderson, South Carolina.
2. The proposed location operates as a nonprofit private club, known as "T J Whispers."
3. Petitioner has held an on-premises beer and wine permit and a nonprofit private club
minibottle license for the proposed location since May, 1996.
4. Petitioner has had no criminal convictions within the past ten years and he is a person of good
moral character.
5. Petitioner is a legal resident of the United States.
6. Petitioner has resided in and maintained his principal place of abode in South Carolina for
more than thirty days before applying for a beer and wine permit and minibottle license.
7. 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 or other alcoholic beverages suspended or revoked.
8. Petitioner is over twenty-one years of age.
9. But for the protest filed, DOR would have issued the beer and wine permit and minibottle
license.
10. The proposed location is in a commercial area outside of the city limits.
11. The nearest residence is approximately 225 feet from the rear of the proposed location.
12. There are no churches, schools or playgrounds within close proximity to the proposed
location.
13. The club is open on Fridays, from 8:00 p.m. to 5:00 a.m., and on Saturdays from 8:00 p.m.
to 2:00 a.m.
14. The location is suitable for the sale of beer and wine and other alcoholic beverages for on-premises consumption.
15. All parties were given notice of the date, time and place of the hearing.
16. The protestant, Lt. Rebecca Fachting, received notice of the hearing by certified mail, return
receipt requested, on April 10, 1998.
17. Lt. Fachting failed to appear at the hearing or communicate with the Court to request a
continuance of the hearing.
18. In its Agency Transmittal, DOR advised this tribunal that Petitioner appears to have met all
applicable statutory requirements, and but for the protest, the Department would have issued the beer
and wine permit and minibottle license.
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 24, 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. South Carolina Code Ann. § 61-6-1820 (Supp. 1997) establishes the criteria for the issuance
of a minibottle license. Although the suitability of the proposed location is not listed in this statute
as a condition of licensing, such a consideration is proper. Schudel v. South Carolina ABC Comm'n,
276 S.C. 138, 276 S.E.2d 308 (1981).
7. 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).
8. 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).
9. 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).
10. Previous suitability is a factor to be considered in determining the suitability of a proposed
location. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). There is no evidence that the
proposed location is any less suitable now than it was when originally licensed.
11. The proposed location is suitable for the sale of beer and wine and other alcoholic beverages
for on-premises consumption.
12. The applicant meets all other statutory requirements for the issuance of an on-premises beer
and wine permit and minibottle license.
ORDER
IT IS THEREFORE ORDERED that the protest to Petitioner's application for renewal of
an on-premises beer and wine permit and minibottle license is dismissed.
IT IS FURTHER ORDERED that Petitioner's application for renewal of an on-premises
beer and wine permit and minibottle license for 3434 Cinema Drive, Anderson, South Carolina, is
granted.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May 7, 1998
Columbia, South Carolina |
