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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Lori Hampton, Tightrope Enterprise, Inc. d/b/a LT's Quick Stop vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Lori Hampton, Tightrope Enterprise, Inc. d/b/a LT's Quick Stop

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0359-CC

APPEARANCES:
For the Petitioner: Kenneth E. Allen, Esquire

For the Respondent: No Appearance

For the Protestants: Chief Joseph S. Jenkins and Isaiah Odum
 

ORDERS:

FINAL DECISION

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. 61-1-55, et seq. (Supp. 1995) and S. C. Code Ann. 1-23-310 et seq. (1986 and Supp. 1995) for a contested case hearing. The Petitioner, Lori Hampton, seeks an off-premise beer and wine permit for LT's Quick Stop. The Respondent's attorney made a Motion to be Excused which was granted by my Order dated August 23, 1996. A hearing was held on October 9, 1996, at the Administrative Law Judge Division.

The Permit requested by the Petitioner is approved with restrictions.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I make the following Findings of Fact by a preponderance of evidence:

    1. The Petitioner seeks an off-premise beer and wine permit for LT's Quick Stop, 748 Church Street, Denmark, South Carolina.
    2. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue.
    3. The qualifications set forth in S. C. Code Ann. 61-9-320 (Supp. 1995) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
    4. Chief Jenkins presented hearsay testimony of the Petitioner's association with various nefarious individuals. He also had personal observations of the Petitioner's association with Timothy Gadson, who is currently charged with murder. This evidence does not sufficiently impugn the Petitioner's character to warrant a denial of a permit. However, if such associations are sufficiently established in the future this issue should certainly be a considered in determining whether to grant or renew the Petitioner's permit.
    5. The proposed location is not unreasonably close to any church, school or playground.
    6. The proposed location is situated in a residential area near a public school bus stop. Furthermore, the proposed location is located in a high crime area with a high percentage of drug addicts and alcoholics. If this was an original application at this location it would not be suitable to receive an off-premise beer and wine permit. However, though the location has received several denials for an on-premise beer and wine permit, it has been permitted for the sale of beer and wine off-premise from 1976 to approximately 1992.
    6. The location poses a potential burden upon the local law enforcement and residents because of the criminal activity and loitering that has occurred in this area in the past. Therefore, the proposed location is suitable for the sale of beer and wine off-premise only with the restrictions and stipulations set forth below.

STIPULATION

The Petitioner stipulated at the hearing that he would abide by the following restrictions if granted an off-premise permit:

    1. Her business will close no later than 9:00 p.m.
    2. She shall have the outside pay telephone moved to the interior of her location to discourage loitering upon her premises.
    3. The Petitioner will prohibit loitering upon her premises and shall grant the Denmark Police Department jurisdiction to patrol and prohibit loitering upon the premises.

CONCLUSIONS OF LAW

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

    1. S.C. Code Ann.  1-23-600 (Supp. 1995) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
    2. S.C. Code Ann.  61-1-55 (Supp. 1995) grants to the Administrative Law Judge Division the powers, duties and responsibilities as hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.
    3. S.C. Code Ann.  61-9-320 (Supp. 1995) sets forth the requirements for the issuance of an off-premise beer and wine permit.
    4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
    5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
    6. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the 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).
    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 a Protestant objects to the issuance of a permit is not a 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).
    8. Permits and licenses issued by the state for sale of liquor, beer and wine are not rights or property but are privileges granted in the exercise of the state's police power to be used and enjoyed only while the restrictions and conditions governing them are complied with. The Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the imposition of restrictions to permits, provides:
      Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.
    In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.
    9. The Petitioner meets the statutory requirements for holding a beer and wine permit at the proposed location with the following restrictions.

ORDER

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

ORDERED that the application for an off-premise beer and wine permit of Lori Hampton for LT's at 748 Church Street, Denmark, South Carolina be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue to adhere to the above stipulations and restrictions that are set forth below:

    1. The Petitioner shall maintain proper lighting around her proposed location to discourage criminal activity. The Petitioner shall insure that this lighting does not reflect or shine upon the local residences.
    2. The Petitioner shall employ no less than two persons at her location whenever beer or wine shall be sold after 12:00 p.m. The employees shall monitor the outside of the location to prohibit the consumption of any alcohol or drugs or loitering in the parking lot area.
    3. The Petitioner shall not sell beer or wine after 9:00 p.m.

IT IS FURTHER ORDERED that a violation of any of the above stipulations or restrictions be considered a violation against the permit and license and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue an off-premise beer and wine permit upon the payment of the required fee and cost by the Petitioner.

AND IT IS SO ORDERED.

_________________________________
Ralph King Anderson, III Administrative Law Judge

October 29, 1996
Columbia, South Carolina


 

 

 

 

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