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Administrative Law Court
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SC Administrative Law Court Decisions

Thanh N. Nguyen, d/b/a Nivens Handy Mart vs. SCDOR

South Carolina Department of Revenue

Thanh N. Nguyen, d/b/a Nivens Handy Mart

South Carolina Department of Revenue

For the Petitioner: Kenneth E. Allen, Esquire

For the Protestant: No Appearance

For the Sheriff's Office: Captain Doug Taylor




This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 and 61-2-260 (Supp. 1997) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997) for a contested case hearing. The Petitioner, Thanh N. Nguyen, seeks an off-premise beer and wine permit for Nivens Handy Mart. The Department made a Motion to be Excused which was granted by my Order dated March 25, 1998. A hearing was held on May 19, 1998, at the Administrative Law Judge Division.

The Permit requested by the Petitioner is approved.


Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestant, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue.

2. The Petitioner recently began operating Nivens Handy Mart at 5077 York Highway, Rock Hill, South Carolina. He now seeks an off-premise beer and wine permit for the location in his name.

3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 1997) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit.

5. The proposed location is not unreasonably close to any church, school or playground.

6. The Petitioner's proposed location has been permitted for the sale of beer and wine for approximately 15 years. He intends to operate the location only Monday through Saturday.

7. Captain Taylor appeared to assist the Protestants in presenting their case. However, his office had no position concerning an off-premise beer and wine permit.

8. The proposed location is suitable for an off-premise beer and wine permit.


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

1. S.C. Code Ann. § 1-23-600 (Supp. 1997) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1997) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1997) sets forth the requirements for the issuance of an off-premise beer and wine permit.

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

5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

7. 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 a protestant objects to the issuance of a permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).

9. The Petitioner meets the statutory requirements for holding an off-premise beer and wine permit at the proposed location.


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

ORDERED that the off-premise beer and wine permit application of Thanh N. Nguyen for Nivens Handy Mart be granted upon the Petitioner's payment of the required fee and cost.



Ralph King Anderson, III

Administrative Law Judge

May 19, 1998

Columbia, South Carolina

Brown Bldg.






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