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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Willie Ellison, d/b/a S D & R ) Docket No. 99-ALJ-17-0368-CC

Convenience Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Willie Ellison, d/b/a S D & R ) Docket No. 99-ALJ-17-0368-CC

Convenience Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
99-ALJ-17-0368-CC

APPEARANCES:
Willie Ellison, pro se

Arlene D. Hand, Attorney for Respondent (excused)

Douglas Doster, Protestant, pro se
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1998) and 23 S.C. Code Ann. Regs. 7-90 (1976). The Petitioner, Willie Ellison, seeks an off-premises beer and wine permit. After Douglas Doster filed a written protest with the South Carolina Department of Revenue ("DOR"), and upon the Petitioner's request, this matter was transmitted by the DOR to the Administrative Law Judge Division ("ALJD") for a hearing. A hearing was held on September 8, 1999, at the ALJD in Columbia, South Carolina, after timely notice to the parties and the Protestant.



PROTESTANT DISCUSSION



The Protestant expressed his concerns that the beverages will be consumed at the proposed location, essentially making the establishment a bar. Further, the Protestant contends the selling of beer and wine would be a bad influence on the young people who live in the area. The Protestant is particularly concerned about a possible increase in roadside litter. Finally, the Protestant is concerned about the possibility of the Petitioner selling the business to someone with less concern for the local area.

At the conclusion of the hearing, the Protestant stated he felt more comfortable after meeting the Applicant, Mr. Ellison, and hearing his testimony.

FINDINGS OF FACT

Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I make the following Findings of Fact by a preponderance of the evidence:



1. The Petitioner, Willie Ellison of SD&R Convenience Store, seeks an off-premises beer and wine permit for his establishment located at 641 Raven Road, Cameron, South Carolina, in Calhoun County.

2. Prior to the hearing, the DOR moved to be excused from appearance at and participation in the hearing. In that motion, the DOR noted it does not oppose the Petitioner's application and would have granted the permit and the license but for the protest. The DOR's motion to be excused was granted.

3. Notice of the time, date, place and subject matter of this hearing was given to the parties and the Protestant.

4. The proposed location is owned by the Petitioner's mother.

5. The DOR has not previously issued an off-premises beer and wine permit for the proposed location.

6. There is no church, school, or public playground located in the immediate area.

7. The hours of operation will be Monday through Saturday from 10:00 a.m. to 9:00 p.m. and closed on Sunday.

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

9. The Petitioner is at least twenty-one years of age, a U.S. citizen, and a citizen of the State of South Carolina. The Petitioner has maintained his principal residence in the State for at least thirty days prior to the date of making application for the requested permit.

10. The Petitioner has not had a beer and wine permit revoked within two years of the date of his application.

CONCLUSIONS OF LAW



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



1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to Chapter 23 of Title 1 of the 1976 Code, as amended.

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

3. The Petitioner meets the personal requirements of this section, and may, thus, hold the requested permit provided the location is suitable.

4. Although "proper location" is not statutorily defined, broad discretion is vested in the ALJD 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).

5. The determination of the suitability of a location is not necessarily a function solely of geography. It involves 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); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. The evidence does not demonstrate that the location is currently unsuitable. Rather, Mr. Doster's testimony explained his fears of future operations. To that extent, his testimony is speculative. An order predicated on speculation cannot stand. See South Carolina Energy Users Committee v. Public Service Comm'n, 332 S.C. 397, 505 S.E.2d 342 (1998). Moreover, our courts have been critical of permit denials when those denials are based on how a location might operate in the future. See Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).



7. Based upon the totality of the evidence presented, the proposed location is a suitable and proper one to be licensed to sell beer and wine.



ORDER



THEREFORE, the DOR shall issue the off-premises beer and wine permit to the Petitioner for his establishment located at 641 Raven Road, Cameron, South Carolina, in Calhoun County.



AND IT IS SO ORDERED.





______________________________

C. DUKES SCOTT

Administrative Law Judge





September 10, 1999

Columbia, South Carolina




Brown Bldg.

 

 

 

 

 

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