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:
PJ’s Fun & Spirits, Inc. vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
PJ’s Fun & Spirits, Inc.
2695 Oak St. Ext., Conway, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
03-ALJ-17-0439-CC

APPEARANCES:
For the Petitioner:
Charles A. Bailey, pro se

For the Protestant:
Tommy Altman, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2002) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner PJ’s Fun & Spirits, Inc., (“Petitioner”), a bona fide non-profit organization, for an on-premises beer and wine permit and a sale and consumption (“minibottle”) license for a location at 2695 Oak St. Ext., Conway, South Carolina (“the subject location”). Upon receipt of a written protest to the application, the South Carolina Department of Revenue (“Department”) transmitted the case to the Administrative Law Judge Division (“ALJD”) for a hearing. After timely notice to the parties and the Protestant, a contested case hearing was held on December 2, 2003 at the ALJD in Columbia, South Carolina. The Department was excused from attending the hearing on the basis of its own motion. Upon review of the relevant and probative evidence and applicable law, the application for an on-premises beer and wine permit and the application for a minibottle license is granted. The Petitioner shall comply with certain restrictions contained herein regarding both applications.

FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, 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.Notice of the time, date, place, and subject matter of the hearing was given to all parties and to the Protestant in a timely manner.

2.Petitioner seeks an on-premise beer and wine permit and a minibottle license for the subject location of 2695 Oak St. Ext., Conway, South Carolina.

3.Petitioner leases the subject location.

4.The subject location has been licensed in the past.

5.The sole Protestant, Tommy Altman, testified as to past problems experienced under past licensees and possible future problems. However, no other resident filed a timely protest to the application, and the Protestant is moving approximately 14 miles away from the subject location. The Protestant called his mother, Mrs. Irene Altman, as his witness. Mrs. Altman lives next door to the subject location. However, Mrs. Altman testified as to problems she has had in the past and her concerns about the future, although she was not listed as a Protestant. Mrs. Altman lived in the same residence when the subject location was first licensed.

6.SLED conducted an investigation of the Petitioner’s establishment and determined that it complied with the applicable law.

7.Charles A. Bailey, a director of the Petitioner, is willing to ensure that music cannot be heard off the premises of the subject location. The parking lot is well-lit.

9.There is no evidence in the record indicating that the area around the subject location today is not of the same character as it was when the subject location was previously licensed.

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. 2002) grants jurisdiction to the ALJD to hear contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2.S.C. Code Ann. § 61-4-520 (Supp. 2002), which sets forth the requirements for the issuance of a beer and wine permit, provides in part:

No permit authorizing the sale of beer or wine may be issued unless . . .

(6)The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

(7)The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches.

S.C. Code Ann. § 61-4-520 (6), (7) (Supp. 2002).

3.The Department may issue a minibottle license upon finding that “[t]he applicant is a bona fide nonprofit organization . . . .” S.C. Code Ann. § 61-6-1820(1) (Supp. 2002).

4.S.C. Code Ann. § 33-31-101, et seq., (Supp. 2002) and 23 S.C. Code Ann. Regs. 7-17 (Supp. 2002) set forth the criteria for a bona fide nonprofit corporation to be eligible for a minibottle license.

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).

6.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).

7.Permits issued by the State for the sale of beer and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

8.A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the permit pursuant to S.C. Code Ann. §§ 61-4-580, 61-6-100, and 61-6-1830 (Supp. 2002).

9.Petitioner meets all statutory requirements for a beer and wine permit and a minibottle license.

10.Pursuant to the South Carolina Supreme Court’s decision in Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973), an application for a location which has previously been licensed must not be denied unless it is shown that the location is now less suitable than it was when it was previously licensed. Based on the evidence submitted at the hearing, I conclude that there has not been a showing that the location is any less suitable for a beer and wine permit and minibottle license now than it was when its last application for a permit and license was granted.

11.At least some of the issues raised by the Protestant are essentially zoning issues. The ultimate purpose of zoning is to confine certain classes of buildings and uses to certain localities. 101A C.J.S. Zoning and Land Planning § 101 (1979). Such authority is vested solely in the local government.

12.I find that, based on the holding of the Supreme Court in Taylor v. Lewis, the application for an on-premises beer and wine permit and the application for a minibottle license must be granted because there has been no showing that the subject location is any less suitable today than when it was last licensed. The Petitioner shall comply with the following restrictions regarding both applications:

(1)The Petitioner shall build a privacy fence not less than 8 feet tall separating his property from that of Mrs. Irene Altman’s residence as previously offered by the Petitioner. The fence shall be completed within 90 days from the date of this Order;

(2)The Petitioner shall not allow music to be played that can be heard beyond the property boundaries of the subject location; and

(3)The Petitioner shall move the front entrance away from the property of Mrs. Altman as Mr. Bailey testified to at the hearing.

ORDER

Based upon the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that the Petitioner’s application for an on-premises beer and wine permit for the location at 2695 Oak St. Ext., Conway, South Carolina is granted;

IT IS FURTHER ORDERED that the Petitioner’s application for a minibottle license for the location at 2695 Oak St. Ext., Conway, South Carolina is granted;

IT IS FURTHER ORDERED that the Petitioner shall comply with the restrictions set forth above regarding both the on-premises beer and wine permit and the minibottle license;

AND IT IS SO ORDERED.

________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

December 3, 2003

Columbia, South Carolina


 

 

 

 

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