South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Sandra E. Spivey, d/b/a Choppers vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Sandra E. Spivey, d/b/a Choppers

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
99-ALJ-17-0198-CC

APPEARANCES:
Sandra E. Spivey, pro se
Petitioner

Protestants: Sheriff John Singleton, Oconee County
Horace Hare
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1998) for a hearing on the application of Sandra E. Spivey. Petitioner seeks an off-premises beer and wine permit for a grocery store located at 303 Brighteyes Drive, outside the city of Westminster, in Oconee County, South Carolina.

After timely notice to the parties and protestants, a hearing was held on May 27, 1999, at the Administrative Law Judge Division in Columbia, South Carolina. The protestants of record, Sheriff Singleton and Horace Hare, did not move to intervene as parties. The Department would have granted the permit but for the protests.

The issues considered at the hearing were: (1) the Petitioner's eligibility to hold a beer and wine permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The application for the off-premises beer and wine permit is hereby granted.



FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. Petitioner seeks an off-premises beer and wine permit for a grocery store located at 303 Brighteyes Drive, Oconee County.

2. The proposed location is situated in a rural area with twenty residences in the immediate proximity of the premises. Petitioner owns all of these residences.

3. Petitioner will operate the grocery store daily during the hours from 6:00 a.m. to 8:00 p.m.

4. Petitioner is of good moral character. The State Law Enforcement Division completed a criminal background investigation of Petitioner. The SLED report revealed no criminal violations, and the record before this tribunal does not indicate that Petitioner has engaged in acts or conduct that imply the absence of good moral character.

5. Petitioner is at least twenty-one years of age, a U.S. citizen, and a citizen of the State of South Carolina. Furthermore, Petitioner has maintained her principal residence in the state for at least thirty days prior to the date of making application for an off-premises beer and wine permit.

6. Petitioner has not had a beer and wine permit or alcoholic beverage license revoked within two years of the date of her application.

7. Notices of the application appeared in the Keowee Courier, a newspaper of general circulation in the area of the proposed location, once a week for three consecutive weeks. Notice was also posted at the proposed location for fifteen days.

8. Sheriff Singleton opposed the issuance of a beer and wine permit to Petitioner on the grounds that the location is unsuitable because of the remoteness of the location and the difficulty in policing the area. Sheriff Singleton also cited the crookedness and undulating terrain on Brighteyes Drive as posing a safety hazard, especially if drivers are under the influence of alcohol. Finally, he cited the residential nature of the community surrounding the grocery store as further evidence of its unsuitability. The grounds in opposition to the permit stated by protestant Horace Hare were virtually identical to those of Sheriff Singleton. When offering testimony, both protestants were under the impression that Petitioner was seeking an on-premises beer and wine permit. However, after being informed that Petitioner was seeking an off-premises permit, neither protestant withdrew his protest.

9. The Department does not oppose Petitioner's application and would have issued the permit but for the protests.



CONCLUSIONS OF LAW AND DISCUSSION

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

1. S.C. Code Ann. section 61-2-260 (Supp. 1998) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this case.

2. S.C. Code Ann. section 61-4-520 (Supp. 1998) establishes the criteria for the issuance of a beer and wine permit.

3. Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law Judge Division 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).

4. As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad, but not unbridled discretion. See Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Court. App. 1984).

5. The determination of the suitability of a location is not necessarily a function of geography alone. It involves an infinite variety of considerations related to the nature and operations 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); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. There was not a sufficient evidentiary showing that the present location is unsuitable or that the issuance of an off-premises beer and wine permit would affect nearby residents' safety, increase crime problems, or have an adverse impact on the community.

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 the issuance of a permit or license is protested is not a sufficient reason by itself to deny the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an off-premises beer and wine permit. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. In that regard, there was no concrete evidence presented by the protestants to support their contention that the issuance of a permit to Petitioner for the sale of beer and wine for off-premises consumption would be detrimental to the community. The protestants' contention is based on speculation and such speculation cannot serve as a basis for the denial of the permit.



ORDER

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

ORDERED that the Department of Revenue shall continue processing Petitioner's application for an off-premises beer and wine permit for 303 Brighteyes Drive, Oconee County, South Carolina.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667





June 4, 1999

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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