ORDERS:
FINAL DECISION AND ORDER
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Judge Division (“Division”)
pursuant to S.C. Code Ann. § 61-4-520 (Supp. 2002), and upon the request of the Petitioner for the
application of an off-premises beer and wine permit. The proposed location is known as La
Economica located at 505 Pickett Post Road, Walhalla, South Carolina.
The South Carolina Department of Revenue (“Department”) filed a Motion to be Excused,
stating that the Department would have granted the permit but for the protest of the application. The
Department’s Motion was not granted, and the Department appeared at the hearing.
There were several protests filed with the Department. The following Protestants did not
attend the hearing, and therefore their protests are deemed abandoned: Donovan and Karen Abel,
Roger and Pamela Burrell, Ruby Hendrix, Reverend Walton Marsh, Dennis Mason, Sandra Smith,
and Travis Tilson. The Protestants listed as present above did attend the hearing.
A hearing was held before the undersigned at the Oconee County Courthouse, Walhalla,
South Carolina on January 6, 2004. Notice of the time, date, location, and nature of the hearing was
timely sent to all parties, as well as the Protestants.
At the call of the case, Mr. Julian S. Stoudemire filed a motion to intervene on behalf of his
client, Mr. Harold Thomas. Based on good cause shown and the requirements of ALJD Rule 20, this
motion is granted. The caption is amended as shown above to include Mr. Harold Thomas as a party
respondent.
In addition, the parties stipulated that the applicant met all the statutory requirements for the
issuance of the permit, and that the sole issue to be determined by the court was the suitability of the
location.
Furthermore, the Petitioner is not fluent in English. Ms. Connie Phalen was present and, after
being duly sworn, served as a translator for the Petitioner with the agreement of all Parties.
FINDINGS OF FACT
Having observed testimony of the witnesses and exhibits presented at the hearing and closely
passed upon their credibility, I make the following Findings of Fact by a preponderance of the
evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
parties as well as the Protestants in a timely manner.2.The Petitioner filed an application for an on/off-premises beer and wine permit for
the business known as La Economica located at 505 Pickett Post Road, Walhalla, South Carolina.
A legal notice appeared in the Daily Journal, a newspaper of general circulation in the area for three
consecutive weeks and was posted at the location for fifteen days. Each of these notices stated that
the Petitioner had applied for an on/off premises beer and wine permit for the location.
3. La Economica is a restaurant and a store that sells miscellaneous grocery items. This
location has been in operation since September 2002. Mr. Marana signed a contract for sale in March
2003 and began renovations to the building. The area is primarily residential. The location was
previously licensed as a convenience store at one time with an off premises permit.
4.Following a period of testimony concerning the nature of the business and the type
of permit the Petitioner is seeking, the parties requested a recess to attempt to resolve certain issues.
The parties then indicated that they had reached an agreement on the outstanding issues:
A. The location will be licensed for off-premises consumption only.
Counsel for Respondent DOR concurred that because the notice to
the community included both on and off premises consumption, that
additional notice or remand was not necessary.
B. The location will be open from 9:30 AM to 6:00 PM Monday through
Saturday.
3.No private parties where alcohol is served will be held anywhere on
the premises, at 505 Pickett Post Road, or in any of the adjacent space
at this location.
5.After Mr. Stoudemire announced this agreement, each Protestant was given
an opportunity to address the court with any additional concerns. Only Mr. Harold Thomas spoke
about his concerns at the location. He concurred in the agreement, but wanted his concerns stated
for the record. He submitted a Petition and letters which were entered into the record as Court’s
exhibits 1 and 2.
6.The Department has indicated that the Petitioner met all statutory requirements for
an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 2002) and 23
S.C. Ann. Regs. 7-90 (1976) and that it would have issued the permit but for the protest.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the South Carolina
Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2002) grants to the South Carolina Administrative Law Judge Division the powers, duties and responsibilities to hear contested matters
governing alcoholic beverages, beer and wine.
3.S.C. Code Ann. § 61-4-520 (Supp. 2002) sets forth the requirements for issuance of
beer and wine permits.
4.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 a
proposed business and its impact upon the community within which it is to be located. Kearney v.
Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
5.Any evidence adverse to a location may by considered. In evaluating the issuance of
a beer and wine permit, the proximity of the location to a church, school or residence is a proper
ground by itself on which the location may be found to be unsuitable and the permit denied. Byers
v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge can
consider whether there have been any law enforcement problems in the general area. Palmer v. S.C.
ABC Comm’n 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the judge can consider the
proximity or the absence of other licensed locations in the immediate vicinity and the existence of
students and small children in the area.
6.Unless there is sufficient evidence of an adverse impact on the community, the
application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects
to the issuance of a permit is not sufficient reason by itself to deny the application. See 45 Am. Jur.
2d § Intoxicating Liquors § 162 (Supp 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
7.In considering the suitability of a location, it is relevant to consider whether the
testimony in opposition to the granting of a license is based on opinions, generalities and conclusions
or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301,
(1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
8. Criteria for approving the sale of beer, wine or liquor must be uniform, objective,
constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful enterprise
in South Carolina, regulated by the State.
9. I conclude that the Petitioner’s burden of proof has been met by virtue of meeting
all of the statutory requirements for an off-premises beer and wine permit at the proposed location.
I further conclude that the proposed location is proper for the permit with the restrictions which the
Petitioner has agreed to impose.ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the South Carolina Department of Revenue shall issue the off-premises beer
and wine permit for La Economica located at 505 Pickett Post Road, Walhalla, South Carolina, with
the following restrictions:
1. The location will be licensed for off-premises consumption only. .
2. The location will be open from 9:30 AM to 6:00 PM Monday through
Saturday.
3.No private parties where alcohol is served will be held anywhere on
the premises, at 505 Pickett Post Road, or in any of the adjacent space
at this location.
AND IT IS SO ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
January 7, 2004
Columbia, South Carolina |
