South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Darla J. Kelman, Kelman Consulting LLC d/b/a Spin-in vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Darla J. Kelman, Kelman Consulting LLC d/b/a Spin-in

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
98-ALJ-17-0238-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For the Protestant: Pro Se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

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, Darla J. Kelman, seeks an off-premise beer and wine permit for Spin-in. The Department made a Motion to be Excused which was granted by my Order dated April 30, 1998. A hearing was held on June 18, 1998, at the Administrative Law Judge Division.

The Permit requested by the Petitioner is approved.

FINDINGS OF FACT

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 the 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 Spin-in at 1200 W. Parker Road, Greenville, South Carolina. She seeks this beer and wine permit for a convenience store she intends to operate. The store hours will be 7:00 a.m. to 11:00 p.m.

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 school or playground.

6. The Protestant argued that the location is not suitable for the off-premise sale of beer and wine because the proposed location is 75 feet from Freedom Fellowship Church. However, the church and the proposed location are in a strip mall in a commercial area of Greenville. The Petitioner entered into a seven-year lease of his location prior to Freedom Fellowship Church entering a month-by-month lease of its building near the proposed location. The location has been permitted for beer and wine sales on practically a continuous basis for sixteen years from 1981 through 1997. In fact, the location was recently found as a suitable location for an off-premise beer and wine permit by the Honorable Ray N. Stevens in Cynthia A. Hughes, C.A. Hughes, Inc., d/b/a Pot-O-Gold v. South Carolina Department of Revenue, and Mike Fair, Docket No. 96-ALJ-17-0267-CC. Furthermore, a Mexican restaurant currently sells beer and wine on-premises three doors down from the church.

7. The Protestant also argued that if the location is permitted "kids" may drink beer and wine from the proposed location in the parking lot. However, there was no evidence offered to substantiate the Protestant's concern in this matter.

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

CONCLUSIONS OF LAW

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.

ORDER

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

ORDERED that the off-premise beer and wine permit application of Darla J. Kelman for Spin-in be granted upon the Petitioner's payment of the required fee and cost.

AND IT IS SO ORDERED.



____________________________

Ralph King Anderson, III

Administrative Law Judge

August 17, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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