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) on Petitioner's application for an off-premises
beer and wine permit for a retail seafood store at 3966 Bohicket Road in John's Island, South
Carolina. Respondent South Carolina Department of Revenue ("DOR") does not oppose Petitioner's
application and would have issued the permit but for the question of the Protestant, Promise Land
Reform Episcopal Church, on the suitability of the location. After notice to the parties and
Protestant, a hearing was conducted on December 7, 1998. The Protestant failed to have someone
appear at the hearing of this matter, thereby waiving its 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 December 7,
1998 hearing, and its protest is hereby dismissed. In addition, I find the proposed location is suitable
for the issuance of an off-premises beer and wine permit. 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, Eric Kyryliuk, submitted an application for an off-premises beer and wine permit
with DOR on February 17, 1998, for the premises located at 3966 Bohicket in Johns Island, South
Carolina.
2. The proposed location operates as a retail seafood store, known as "Fresh Fish Management."
3. The agency file incorporated into the record at the hearing presents a prima facia case that
Petitioner meets all of the statutory personal fitness requirements, and no evidence was presented
to the contrary.
4. The location has been licensed to sell beer and wine for off-premises consumption since
approximately 1983 without incident.
5. Promise Lord Reform Episcopal Church is located approximately 229 feet from the proposed
location, separated by a dense treeline which is 25 feet in width.
6. Given the trouble-free history of the proposed location, it is suitable for the sale of beer and
wine for off-premises consumption.
7. The parties and Protestant were given notice of the date, time and place of the hearing.
8. The Protestant received notice of the hearing by certified mail, return receipt requested,
which receipt was acknowledged by signature and returned to the Court.
9. The Protestant failed to appear at the hearing and did not communicate with the Court to
request a continuance of the hearing.
10. In its Agency Transmittal, DOR advised this Court 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.
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 Protestants are in default under ALJD Rule 23 for failure to appear at the December 7,
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 for off-premises consumption.
10. The applicant meets all other statutory requirements for the issuance of an off-premises beer
and wine permit.
ORDER
IT IS THEREFORE ORDERED that the protest to Petitioner's application for an off-premises beer and wine permit is dismissed.
IT IS FURTHER ORDERED that Petitioner's application for an on-premises beer and wine
permit for 3966 Bohicket Road, Johns Island, South Carolina, is granted.
AND IT IS SO ORDERED.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
December 11, 1998
Columbia, South Carolina |
