ORDERS:
FINAL 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), upon Petitioner Gregory C. Wright's request
for a contested case hearing. Petitioner seeks an off-premises beer and wine permit for the premises
at 302 Brooklyn Street in Sumter, South Carolina. Respondent South Carolina Department of
Revenue ("DOR") does not oppose Petitioner's application, although this tribunal denied DOR's
motion to be excused from appearing at the hearing. After notice to all parties and protestants, a
hearing was conducted on December 2, 1998. Petitioner did not appear at the hearing; however, the
hearing was conducted in his absence.
Based upon the relevant and probative evidence and the applicable law, I find and conclude
that Petitioner is in default under ALJD Rule 23 for failure to appear at the December 2, 1998
hearing and that DOR is not required to process Petitioner's application for an off-premises beer and
wine permit. The permit is denied.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings of fact:
1. On May 22, 1998, Petitioner Gregory C. Wright filed an application with DOR, AI #122239,
for an off-premises beer and wine permit for the premises located at 302 Brooklyn Street, Sumter,
South Carolina.
2. All parties and protestants were given notice of the time, date and place of the hearing.
3. Petitioner received notice of the hearing by certified mail, return receipt requested, on
October 16, 1998.
4. Petitioner failed to appear at the hearing and did not communicate with the Court to request
a continuance; however, the hearing was conducted in Petitioner's absence.
5. The DOR file was incorporated into the record of the hearing.
6. The proposed location is situated in an urban residential neighborhood. The streets which
intersect at the proposed location are very narrow and lack sidewalks or designated parking.
7. The proposed location had been formerly licensed for the sale of beer and wine as "C & J's
Fast Food and Grocery" from 1993 to 1995.
8. When previously licensed, the proposed location was the source of traffic hazards, drug sales,
disorderly conduct, public consumption and drunkenness, debris, and litter.
9. When previously licensed, the proposed location had an adverse impact on the surrounding
community.
10. Petitioner was convicted of public drunkenness in 1995 and public disorderly conduct and
resisting arrest in 1993.
11. Given the past history of the proposed location, its proximity to residences, and Petitioner's
criminal history, the location is unsuitable for the sale of beer and wine.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction of this case 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. Petitioner is in default under ALJD Rule 23 for failure to appear at the December 2, 1998
hearing.
3. Pursuant to ALJD Rule 23, an Administrative Law Judge may dismiss a case adversely to
a defaulting party.
4. 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.
5. As the permit applicant, Petitioner has the burden of proving that the proposed location is
suitable for the issuance of a beer and wine permit. See, e.g., 2 Am.Jur.2d Administrative Law § 360
(1994).
6. Because Petitioner failed to appear at the hearing and failed to submit any evidence regarding
the suitability of the proposed location, dismissal of the case is appropriate under ALJD Rule 23.
7. "[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).
8. 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.
9. 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)
10. 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)
11. Proximity of a residence to a proposed location by itself may be adequate grounds for denial
of a beer and wine permit. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653
(1991).
12. The proposed location is unsuitable, and the permit must be denied based on the proximity
of the location to residences, the history of the location when previously licensed to sell beer and
wine, and the Petitioner's history of criminal convictions.
ORDER
IT IS THEREFORE ORDERED that this case is dismissed pursuant to ALJD Rule 23.
IT IS FURTHER ORDERED that DOR shall not process the application filed by Petitioner
for an off-premises beer and wine permit for the location at 302 Brooklyn Street, Sumter, South
Carolina.
AND IT IS SO ORDERED.
____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
December 11, 1998
Columbia, South Carolina |
