South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
SCDOR vs. Charles Perry Smith, Jr., d/b/a Leprechaun's

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
South Carolina Department of Revenue

Respondents:
Charles Perry Smith, Jr., d/b/a Leprechaun's
 
DOCKET NUMBER:
00-ALJ-17-0048-CC

APPEARANCES:
Kenneth E. Allen, Esquire
For Petitioner

Nicholas P. Sipe, Esquire
For Respondent

Richard G.Whiting, Robert Winburn and John Tyler,
Protestants
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) on the application of Charles Perry Smith, Jr. for a minibottle license for a restaurant to be located at 10809 Two Notch Road, Elgin, South Carolina. After notice to the parties and protestants, a hearing was conducted on May 15, 2000. Based upon the evidence presented regarding the suitability of the location, this tribunal finds the nature of the area in which the restaurant is to be located suitable for the issuance of a minibottle license. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

STIPULATIONS

At the hearing of this matter, Petitioner's counsel stipulated in open court that the only issue before this tribunal was whether the location was suitable for a minibottle license. Counsel for Petitioner further stipulated that his client does not currently satisfy the statutory criteria concerning the conduct of a business engaged primarily and substantially in the preparation and serving of meals.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, 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. On July 9, 1999, Petitioner submitted an application for a bona fide restaurant minibottle license with the South Carolina Department of Revenue for the premises located at 10809 Two Notch Road, Elgin, South Carolina. Petitioner's application is incorporated into the record by reference.

2. Petitioner leases the proposed location from Margaret Smith.

3. Petitioner currently operates a game room at the proposed location and was issued a beer and wine permit for this location in February of 1999. This business is located directly off of Two Notch Road, a well traversed highway in this rural community. The area in which the business is situated is a mix of residential dwellings and commercial establishments.

4. Petitioner has no criminal convictions and is a person of good moral character.

5. Petitioner is a legal resident of the United States.

6. Petitioner has resided in and maintained his principal place of abode in South Carolina for more than thirty days before applying for a minibottle license.

7. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has never had any permit to sell beer and wine or alcoholic liquors suspended or revoked.

8. Petitioner is over twenty-one years of age.

9. Notice of application for the beer and wine permit and minibottle license was published in The Columbia Star on July 22 and 29, 1999 and August 5, 1999. Notice was also posted at the proposed location for the time-period required.

10. Richard G. Whiting, Rev. Robert Winburn, and John Tyler filed protests to Petitioner's application on the ground that the proposed location is unsuitable. They contend that the proposed location is unsuitable because of its proximity to surrounding neighborhoods and the potential health hazards that may result if patrons of the establishment drive while under the influence of alcohol.

11. But for the protests, the Department would have issued the minibottle license, upon Petitioner's satisfaction of all statutory criteria.

12. There are no churches, schools, or playgrounds within close proximity to the proposed location. CONCLUSIONS OF LAW

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

1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999), S.C. Code Ann. § 1-23-600(B) (Supp. 1999) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 1999).

2. "[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).

3. S.C. Code Ann. § 61-6-1820 (Supp. 1999) establishes the criteria for the issuance of a minibottle license. Although the suitability of the proposed location is not listed in this statute as a condition of licensing, such a consideration is proper. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

4. 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).

5. The determination of 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 proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may find the location to be unsuitable . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

7. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Court. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Court. App. 1984).

8. 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); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

9. This tribunal is respectful of Protestants' sentiments concerning the issuance of the license in question. Nevertheless, there was no sufficient evidentiary showing that the present location is unsuitable or that the issuance of a minibottle license would affect residents' safety, create traffic problems, or have an adverse impact on the community.

10. The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

11. I find the location to be suitable for the issuance of a minibottle license due to the commercial nature and array of businesses in the area in which it is to be situated.

12. The Department shall continue to process Petitioner's application for a minibottle license.

ORDER

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

ORDERED, that the Department shall continue to process Petitioner's application for a minibottle license.

AND IT IS SO ORDERED.



___________________________

JOHN D. GEATHERS

Administrative Law Judge





May 30, 2000

Columbia, South Carolina.


Brown Bldg.

 

 

 

 

 

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