SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1996) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997) for a contested case hearing. The Petitioner, Diane Perry, seeks an on-premise beer and wine permit for the LTD Lounge. The Respondent made a Motion to be Excused which was granted by my Order dated January 8, 1998. A hearing was held on March 24, 1998, at the Administrative Law Judge Division.

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 Petitioner and Protestant, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestant, and South Carolina Department of Revenue.

2. The Petitioner seeks an on-premise beer and wine permit for the LTD Lounge at 1008-A Pineland Road, Vance, South Carolina. The Petitioner stated that her hours of operation would be as follows:

a. 6:30 p.m. to 10:30 p.m., Monday through Thursday

b. 6:30 p.m. to 2:00 a.m., Friday

c. 6:30 p.m. to 11:00 p.m., Saturday

3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 1997) 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. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit.

5. Lieutenant Mack appeared on behalf of the Orangeburg Sheriffs Office to protest this permit. He contends that the proposed location is unsuitable because of the numerous complaints that had been made about the previous business. Specifically, there were complaints concerning the following:

a. Underage consumption of alcohol in the parking area;

b. Loud music from the cars in the parking area;

c. Litter thrown upon the adjacent residents' property;

d. Parking by the Club's patrons that has blocked the roadway in front of the location; and

e. Criminal activity in the area.

6. The location has been permitted for the sale of beer and wine since approximately 1950. The permits for the location have never been revoked.

7. 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. However, with the restrictions set forth below, the evidence did not establish that this business would change the integrity of the neighborhood or create an overall adverse impact on the community. Therefore, the proposed location is suitable for the sale of beer and wine on-premise only with the restrictions and stipulations set forth below.

The Petitioner stipulated at the hearing that she would abide by the following restrictions if granted a beer and wine permit:

She will insure that the music emanating from her business cannot be heard in the local residences after 10:00 p.m. on week nights and 11:00 p.m. on weekends.

She will monitor the parking area to insure that no loud music is played, and that there is no loitering occurs.

She will clean-up the residential areas immediately surrounding her business before closing.

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. 1997) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1997) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1997) sets forth the requirements for the issuance of a 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. In considering the suitability of a location, it is relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).

9. 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.

10. The Petitioner meets the statutory requirements for holding an on-premise beer and wine permit at the proposed location with the following restrictions.

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

ORDERED that the on-premise beer and wine permit application of Diane Perry for LTD Lounge be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue agreeing to 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 or her employees shall prohibit loitering and the consumption of beer, wine or liquor in the parking lot area of the proposed location.

3. The Petitioner or her employees shall monitor the parking area to insure that there are no minors in the area and that no public disturbance is created.

4. The Petitioner shall not allow excessive noise to emanate from the LTD Lounge. Any noise that is noticeably audible within any local residence after 10:00 p.m. with closed doors and windows shall be considered excessive. Furthermore, for the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision.

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 on-premise beer and wine permit upon the payment of the required fee and cost by the Petitioner.

AND IT IS SO ORDERED.

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Ralph King Anderson, III

Administrative Law Judge

April 22, 1998

Columbia, South Carolina