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:
Sam’s East, Inc., d/b/a Sam’s Club #8278 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Sam’s East, Inc., d/b/a Sam’s Club #8278
1211 Woodruff Road, Greenville, SC

Respondent:
South Carolina Department of Revenue

Party/Intervenor:
City of Greenville, South Carolina
 
DOCKET NUMBER:
03-ALJ-17-0391-CC

APPEARANCES:
John M. Grantland, Esquire for Sam’s East, Inc.

Carol I. McMahan, Esquire, for the Department of Revenue

Debra Gammons, Esquire, for the City of Greenville
 

ORDERS:

23.Through subsection 16 of this Act, the General Assembly also revised the questions to be posed on the referendum ballot pursuant to Section 61-6-2010 by amending subsection (C) (1) of that section to read as follows:

. . . The question on the ballot shall be one of the following:

‘Shall the South Carolina Department of Revenue be authorized to issue temporary permits in this (county)(municipality) for a period not to exceed twenty-four hours to allow the possession, sale, and consumption of alcoholic liquors in sealed containers of two ounces or less to bona fide nonprofit organizations and business establishments otherwise authorized to be licensed for consumption-on-premises sales’ or

‘Shall the South Carolina Department of Revenue be authorized to issue temporary permits in this (county) (municipality) for a period not to exceed twenty-four hours to allow the possession, sale, and consumption of alcoholic liquors in sealed containers of two ounces or less to bona fide nonprofit organizations and business establishments authorized to be licensed for consumption-on-premises sales and to allow the sale of beer and wine at permitted off-premises locations without regard to the days or hours of sales?’

24.Section 20 of the 2003 Act provides: “This act takes effect upon approval by the Governor.” On June 25, 2003, Governor Sanford signed Act 70.

25. Exhibits 1, 2, 3, 4 and 5 and the information contained therein.

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

1.The Court has both personal and subject matter jurisdiction.

2.Notice of the date, time, place and subject matter of the hearing was timely given to all parties.

3.Petitioner filed its application for a Seven-Day Permit with the Department on July 15, 2003.

4.The suitability of the location and of the applicant was not an issue raised by the parties.

CONCLUSIONS OF LAW

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

1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Court to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the ALC the authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine.

2.S.C. Code Ann. §§ 61-4-510 and 61-6-2010 authorize the issuance of Seven-Day permits.

3.Act 70 of 2003, effective June 25, 2003, amended S.C. Code Ann. §§ 61-4-510 and 61-6-2010, which added the requirement that Seven-Day Permits may only be issued in counties or municipalities which have held referendums specifically authorizing off-premises beer and wine consumption permits, and revised the questions to be posed on the referendum ballot.

4.Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the state’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

5.On July 20, 2004, the Administrative Law Court issued an En Banc Order resolving the issue of whether the Department of Revenue has the authority to issue Seven-Day Permits in the City of Greenville. See Piedmont Petroleum Corp. v. S.C. Dept. of Revenue, et al., Docket No. 03-ALJ-17-0337-CC (S.C. ALC July 20, 2004) (en banc order). The decision holds that, since Greenville’s June 13, 2000 referendum did not specifically authorize the off-premises sale of beer and wine on Sundays, effective June 25, 2003, Act 70 of 2003 prohibits the Department from issuing these Seven-Day Permits in the City of Greenville. The issues addressed and the findings and conclusions made in the En Banc Order are binding upon this case. ALC Rule 70(F).


DISCUSSION

In its En Banc Order, the Court addressed the following issues:

(1) Does the Department have the authority to issue off-premises beer and wine permits pursuant to S.C. Code Ann. §§ 61-4-510 and 61-6-2010 (Supp. 2002); and

(2) What is the effect of Act 70 of 2003, effective June 25, 2003, on the Department’s authority to issue Seven-Day Permits?

On these issues, the Court concluded that prior to June 25, 2003, pursuant to the City’s referendum held on June 13, 2000, the Department did have the authority to issue Seven-Day Permits within the City of Greenville. However, since the June 13, 2000 referendum did not specifically authorize the off-premises sale of beer and wine on Sundays, effective June 25, 2003, Act 70 of 2003 prohibits the Department from issuing Seven-Day Permits in the City of Greenville.

The Department, like any other state agency, is a creature of statute and, as such, can only exercise that authority expressly delegated to it or delegated by necessary implication. Fowler v. Beasley, 322 S.C. 463, 472 S.E.2d 360 (1996). The cardinal rule of statutory construction is to ascertain the legislative intent, which, once determined, must prevail. Gardner v. Biggart, 208 S.C. 331, 417 S.E.2d 858 (1992). In determining the legislative intent of a statute, courts look to the clear and unambiguous language of the statute. Defender Properties, Inc. v. Doby, 307 S.C. 336, 415 S.E.2d 383 (1992). When the terms of a statute are clear and unambiguous, there is no room for construction and courts must apply them according to their literal meaning. Citizens for Lee County, Inc. v. Lee County, 308 S.C. 23, 416 S.E.2d 641 (1992).

Prior to the enactment of Act 70 of 2003, the clear and unambiguous language of § 61-4-510(A)(Supp. 2002) authorized DOR to issue Seven-Day Permits in any county or municipality “where temporary permits are authorized to be issued pursuant to S.C. Code Ann. § 61-6-2010. . . after June 21, 1993.” In other words, if a county held a successful referendum on temporary permits pursuant to Section 61-6-2010 after June 21, 1993, that referendum automatically authorized the issuance of Seven-Day Permits as well. For a temporary permit to be authorized pursuant to S.C. Code Ann. § 61-6-2010 (Supp. 2002), the following requirements had to be met:

(1)a majority of the municipality’s or county’s qualified electors had to vote in favor of the issuance of temporary permits;

(2)the ballot language had to read “substantially” as provided in Section 61-6-2010(C)(1)(Supp. 2002); and

(3) the Canvassers must publish the results of the referendum and certify them to the Department.

S.C. Code Ann. § 61-6-2010(C)(1)(Supp. 2002). In the June 13, 2000 referendum, a majority of the Greenville electors voted in favor of the issuance of temporary permits, well after June 21, 1993. The ballot language was identical to that set forth in Section 61-6-2010(C), and the Canvassers published the results and certified them to the Department. See Stipulation No. 1.

Although the June 13, 2000 referendum did not specifically address off-premise sales of beer and wine, but only addressed the question of temporary minibottle permits, prior to the enactment of Act 70 the statute simply did not require a separate referendum or specific language addressing the sale of beer and wine for off-premises consumption in counties or municipalities which conducted a referendum on temporary permits after June 21, 1993. Thus, based on the statutes at that time, Greenville’s referendum, which authorized temporary permits for Sunday minibottle sales and which was held after June 21, 1993, also authorized, as a matter of law, the issuance of Seven-Day Permits, notwithstanding the absence of specific language to that effect. Footnote

Furthermore, the results of the Greenville referendum were not challenged or contested within the statutory time limit. Moreover, the Administrative Law Court is not the appropriate forum to hear election protests. See S.C. Code Ann. §§ 7-17-30, 7-17-50 through 7-17-70, and 7-17-250 (1976 & Supp. 1999) (county boards of canvassers hear contests or protests involving elections, and appeals are taken to the Board of State Canvassers and ultimately to the South Carolina Supreme Court). Accordingly, the City’s complaint that the wording of the June 13, 2000 referendum did not adequately inform voters of the consequences of a vote in favor of the referendum was not properly before the Court.

However, Act 70 of 2003, which became effective June 25, 2003, limited the Department’s authority to issue Seven-Day Permits in the City of Greenville.

Act 70 amends Section 61-4-510(A) to read as follows:

In counties or municipalities where off-premises beer and wine permits are specifically authorized to be issued pursuant to Section 61-6-2010, in lieu of the retail permit fee required pursuant to Section 61-4-500, a retail dealer otherwise eligible for the retail permit under that section may elect to apply for a special version of that permit which allows sales for off-premises consumption without regard to the restrictions on the days or hours of sales provided in Sections 61-4-120, 61-4-130, and 61-4-140.

S.C. Code Ann. § 61-4-510(A)(Supp. 2003)(emphasis added).

Under Act 70 of 2003, the Department no longer acts on an application for a Seven-Day Permit by determining whether a favorable referendum on minibottles has been obtained in the applicant’s county or municipality. Rather, effective June 25, 2003, the General Assembly redirected the Department’s focus to a determination of whether the applicant’s location is within a county or municipality “where off-premises beer and wine permits are specifically authorized to be issued pursuant to Section 61-6-2010.”

Here, the application for a Seven-Day Permit is for a location within the City of Greenville. Thus, the Department’s authority to issue a Seven-Day Permit to the applicant is dependent upon the language of the City’s June 13, 2000 referendum. Greenville’s referendum “specifically authorized” the issuance of temporary minibottle licenses, but did not contain specific language authorizing the issuance of off-premises beer and wine permits. Accordingly, Act 70 terminated the Department’s authority to issue Seven-Day Permits in the City of Greenville, and thus, to the applicant in this case.

Furthermore, although the City of Greenville has already held a minibottle referendum under previously existing law, the Court held that the relevant portions of Act 70 still apply to the City of Greenville. “The cardinal rule of statutory interpretation is that words used therein must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand its operation.” Hitachi Data Systems Corp. v. Leatherman, 309 S.C. 174, 420 S.E.2d 843, 846 (1992). The unambiguous language of the statute allows Seven-Day Permits only “[i]n counties or municipalities where off-premises beer and wine permits are specifically authorized to be issued pursuant to Section 61-6-2010.” Here, the City of Greenville has not held a referendum that specifically authorizes the off-premises sale of beer and wine on Sundays, and nothing in the literal language of the amended sections suggests any exemptions from the coverage of Act 70.

There is also nothing in the General Assembly’s statement of the effective date of Act 70 that allows for any exemptions. Indeed, the General Assembly chose to use the plain and simple statement that “This Act takes effect upon approval by the Governor.” Act 70 of 2003, Section 20. Thus, as of June 25, 2003, the effective date of Act 70, the Department is not authorized to issue Seven-Day Permits unless there is a referendum that specifically authorizes such permits. Moreover, a finding that there are no exceptions to Act 70 results in the uniform treatment of all jurisdictions. Seven-Day Permits can be issued only in counties or municipalities which have already had a favorable vote on the beer and wine question, or will obtain such a vote in the future.


It is a well-established doctrine that alcoholic beverage licenses or permits create no vested rights. “Liquor licenses are neither contracts nor rights of property. They are mere permits, issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do; and to be enjoyed only so long as the restrictions and conditions governing their continuance are complied with.” Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Moreover, the legislature has the nearly unfettered power and authority, in the exercise of the police power of the State, to change the requirements for the lawful sale and consumption of alcoholic beverages. The case of Davis v. Query, 209 S.C. 41, 39 S.E.2d 117 (1946) dealt with the South Carolina Tax Commission’s authority to promulgate regulations placing limits on a retail liquor dealer’s purchases of alcoholic beverages from wholesalers. In upholding the Commission’s authority to promulgate such regulations, the South Carolina Supreme Court noted:

[The dealer] overlooks the fundamental fact that he is not engaged in an ordinary business and has no vested right to operate, despite his license, in any manner other than that dictated by the state; his is a perilous business; there is probably no field in which legislative bodies, and the people themselves in referenda, have been more fickle.

Id., 39 S.E.2d at 124 (emphasis added). Because the license is issued pursuant to the police power, the licensee takes it subject to the right of the State, at any time, for the public good, to make further restrictions and regulations. Dantzler v. Callison, 230 S.C. 75, 94 S.E.2d 177 (1956).

Furthermore, Act 70 amended prior law. Amended statutes must be construed as if the original statutes were repealed and a new and independent act in amended form adopted, unless contrary intent is clearly indicated. Windham v. Pace, 192 S.C. 271, 6 S.E.2d 270 (1939). The repeal of a statute has the effect of blotting out the statute as if it had never existed and puts an end to all proceedings under it which have not been prosecuted to final judgment. Taylor v. Murphy, 293 S.C. 316, 360 S.E.2d 314 (1987). Indeed, unlike Act 415 of 1996, Act 70 contains no savings clause which preserves pending proceedings. Because Petitioner’s application for a Seven-Day Permit was filed on July 15, 2003, after the June 25, 2003 effective date of Act 70, the application must be processed under Act 70, which, from June 25, 2003 forward, controls the issuance of temporary minibottle licenses and Seven-Day Permits.

Based upon the foregoing,

IT IS HEREBY ORDERED that, pursuant to the Court’s En Banc Order issued July 20, 2004, Petitioner’s application for a Seven-Day off-premises beer and wine permit is DENIED as a matter of law.

AND IT IS SO ORDERED.

_____________________________________

Marvin F. Kittrell

Chief Administrative Law Judge


December 14, 2004

Columbia, South Carolina

23.       Through subsection 16 of this Act, the General Assembly also revised the questions to be posed on the referendum ballot pursuant to Section 61-6-2010 by amending subsection (C) (1) of that section to read as follows:

. . . The question on the ballot shall be one of the following:

 

‘Shall the South Carolina Department of Revenue be authorized to issue temporary permits in this (county)(municipality) for a period not to exceed twenty-four hours to allow the possession, sale, and consumption of alcoholic liquors in sealed containers of two ounces or less to bona fide nonprofit organizations and business establishments otherwise authorized to be licensed for consumption-on-premises sales’ or

 

‘Shall the South Carolina Department of Revenue be authorized to issue temporary permits in this (county) (municipality) for a period not to exceed twenty-four hours to allow the possession, sale, and consumption of alcoholic liquors in sealed containers of two ounces or less to bona fide nonprofit organizations and business establishments authorized to be licensed for consumption-on-premises sales and to allow the sale of beer and wine at permitted off-premises locations without regard to the days or hours of sales?’

 

24.       Section 20 of the 2003 Act provides: “This act takes effect upon approval by the Governor.” On June 25, 2003, Governor Sanford signed Act 70.

25. Exhibits 1, 2, 3, 4 and 5 and the information contained therein.

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

            1.         The Court has both personal and subject matter jurisdiction.             

            2.         Notice of the date, time, place and subject matter of the hearing was timely given to all parties.

            3.         Petitioner filed its application for a Seven-Day Permit with the Department on July 15, 2003.

            4.         The suitability of the location and of the applicant was not an issue raised by the parties.

 CONCLUSIONS OF LAW

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

1.         S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Court to hear contested cases under the Administrative Procedures Act. Specifically, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the ALC the authority to hear contested case hearings in matters governing alcoholic beverages, beer and wine.

2.         S.C. Code Ann. §§ 61-4-510 and 61-6-2010 authorize the issuance of Seven-Day permits.

3.         Act 70 of 2003, effective June 25, 2003, amended S.C. Code Ann. §§ 61-4-510 and 61-6-2010, which added the requirement that Seven-Day Permits may only be issued in counties or municipalities which have held referendums specifically authorizing off-premises beer and wine consumption permits, and revised the questions to be posed on the referendum ballot.

4.         Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the state’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

5.         On July 20, 2004, the Administrative Law Court issued an En Banc Order resolving the issue of whether the Department of Revenue has the authority to issue Seven-Day Permits in the City of Greenville. See Piedmont Petroleum Corp. v. S.C. Dept. of Revenue, et al., Docket No. 03-ALJ-17-0337-CC (S.C. ALC July 20, 2004) (en banc order). The decision holds that, since Greenville’s June 13, 2000 referendum did not specifically authorize the off-premises sale of beer and wine on Sundays, effective June 25, 2003, Act 70 of 2003 prohibits the Department from issuing these Seven-Day Permits in the City of Greenville. The issues addressed and the findings and conclusions made in the En Banc Order are binding upon this case. ALC Rule 70(F).


DISCUSSION

 

In its En Banc Order, the Court addressed the following issues:

(1) Does the Department have the authority to issue off-premises beer and wine permits pursuant to S.C. Code Ann. §§ 61-4-510 and 61-6-2010 (Supp. 2002); and

(2) What is the effect of Act 70 of 2003, effective June 25, 2003, on the Department’s authority to issue Seven-Day Permits?

On these issues, the Court concluded that prior to June 25, 2003, pursuant to the City’s referendum held on June 13, 2000, the Department did have the authority to issue Seven-Day Permits within the City of Greenville. However, since the June 13, 2000 referendum did not specifically authorize the off-premises sale of beer and wine on Sundays, effective June 25, 2003, Act 70 of 2003 prohibits the Department from issuing Seven-Day Permits in the City of Greenville.

The Department, like any other state agency, is a creature of statute and, as such, can only exercise that authority expressly delegated to it or delegated by necessary implication. Fowler v. Beasley, 322 S.C. 463, 472 S.E.2d 360 (1996). The cardinal rule of statutory construction is to ascertain the legislative intent, which, once determined, must prevail. Gardner v. Biggart, 208 S.C. 331, 417 S.E.2d 858 (1992). In determining the legislative intent of a statute, courts look to the clear and unambiguous language of the statute. Defender Properties, Inc. v. Doby, 307 S.C. 336, 415 S.E.2d 383 (1992). When the terms of a statute are clear and unambiguous, there is no room for construction and courts must apply them according to their literal meaning. Citizens for Lee County, Inc. v. Lee County, 308 S.C. 23, 416 S.E.2d 641 (1992).

  Prior to the enactment of Act 70 of 2003, the clear and unambiguous language of § 61-4-510(A)(Supp. 2002) authorized DOR to issue Seven-Day Permits in any county or municipality “where temporary permits are authorized to be issued pursuant to S.C. Code Ann. § 61-6-2010. . . after June 21, 1993.” In other words, if a county held a successful referendum on temporary permits pursuant to Section 61-6-2010 after June 21, 1993, that referendum automatically authorized the issuance of Seven-Day Permits as well. For a temporary permit to be authorized pursuant to S.C. Code Ann. § 61-6-2010 (Supp. 2002), the following requirements had to be met:

(1)       a majority of the municipality’s or county’s qualified electors had to vote in favor of the issuance of temporary permits;

(2)       the ballot language had to read “substantially” as provided in Section 61-6-2010(C)(1)(Supp. 2002); and

(3)       the Canvassers must publish the results of the referendum and certify them to the Department.

S.C. Code Ann. § 61-6-2010(C)(1)(Supp. 2002). In the June 13, 2000 referendum, a majority of the Greenville electors voted in favor of the issuance of temporary permits, well after June 21, 1993. The ballot language was identical to that set forth in Section 61-6-2010(C), and the Canvassers published the results and certified them to the Department. See Stipulation No. 1.

Although the June 13, 2000 referendum did not specifically address off-premise sales of beer and wine, but only addressed the question of temporary minibottle permits, prior to the enactment of Act 70 the statute simply did not require a separate referendum or specific language addressing the sale of beer and wine for off-premises consumption in counties or municipalities which conducted a referendum on temporary permits after June 21, 1993. Thus, based on the statutes at that time, Greenville’s referendum, which authorized temporary permits for Sunday minibottle sales and which was held after June 21, 1993, also authorized, as a matter of law, the issuance of Seven-Day Permits, notwithstanding the absence of specific language to that effect. Footnote

Furthermore, the results of the Greenville referendum were not challenged or contested within the statutory time limit. Moreover, the Administrative Law Court is not the appropriate forum to hear election protests. See S.C. Code Ann. §§ 7-17-30, 7-17-50 through 7-17-70, and 7-17-250 (1976 & Supp. 1999) (county boards of canvassers hear contests or protests involving elections, and appeals are taken to the Board of State Canvassers and ultimately to the South Carolina Supreme Court). Accordingly, the City’s complaint that the wording of the June 13, 2000 referendum did not adequately inform voters of the consequences of a vote in favor of the referendum was not properly before the Court.

However, Act 70 of 2003, which became effective June 25, 2003, limited the Department’s authority to issue Seven-Day Permits in the City of Greenville.

Act 70 amends Section 61-4-510(A) to read as follows:

In counties or municipalities where off-premises beer and wine permits are specifically authorized to be issued pursuant to Section 61-6-2010, in lieu of the retail permit fee required pursuant to Section 61-4-500, a retail dealer otherwise eligible for the retail permit under that section may elect to apply for a special version of that permit which allows sales for off-premises consumption without regard to the restrictions on the days or hours of sales provided in Sections 61-4-120, 61-4-130, and 61-4-140.

 

S.C. Code Ann. § 61-4-510(A)(Supp. 2003)(emphasis added).

Under Act 70 of 2003, the Department no longer acts on an application for a Seven-Day Permit by determining whether a favorable referendum on minibottles has been obtained in the applicant’s county or municipality. Rather, effective June 25, 2003, the General Assembly redirected the Department’s focus to a determination of whether the applicant’s location is within a county or municipality “where off-premises beer and wine permits are specifically authorized to be issued pursuant to Section 61-6-2010.”

Here, the application for a Seven-Day Permit is for a location within the City of Greenville. Thus, the Department’s authority to issue a Seven-Day Permit to the applicant is dependent upon the language of the City’s June 13, 2000 referendum. Greenville’s referendum “specifically authorized” the issuance of temporary minibottle licenses, but did not contain specific language authorizing the issuance of off-premises beer and wine permits. Accordingly, Act 70 terminated the Department’s authority to issue Seven-Day Permits in the City of Greenville, and thus, to the applicant in this case.

Furthermore, although the City of Greenville has already held a minibottle referendum under previously existing law, the Court held that the relevant portions of Act 70 still apply to the City of Greenville. “The cardinal rule of statutory interpretation is that words used therein must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand its operation.” Hitachi Data Systems Corp. v. Leatherman, 309 S.C. 174, 420 S.E.2d 843, 846 (1992). The unambiguous language of the statute allows Seven-Day Permits only “[i]n counties or municipalities where off-premises beer and wine permits are specifically authorized to be issued pursuant to Section 61-6-2010.” Here, the City of Greenville has not held a referendum that specifically authorizes the off-premises sale of beer and wine on Sundays, and nothing in the literal language of the amended sections suggests any exemptions from the coverage of Act 70.

There is also nothing in the General Assembly’s statement of the effective date of Act 70 that allows for any exemptions. Indeed, the General Assembly chose to use the plain and simple statement that “This Act takes effect upon approval by the Governor.” Act 70 of 2003, Section 20. Thus, as of June 25, 2003, the effective date of Act 70, the Department is not authorized to issue Seven-Day Permits unless there is a referendum that specifically authorizes such permits. Moreover, a finding that there are no exceptions to Act 70 results in the uniform treatment of all jurisdictions. Seven-Day Permits can be issued only in counties or municipalities which have already had a favorable vote on the beer and wine question, or will obtain such a vote in the future.


It is a well-established doctrine that alcoholic beverage licenses or permits create no vested rights. “Liquor licenses are neither contracts nor rights of property. They are mere permits, issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do; and to be enjoyed only so long as the restrictions and conditions governing their continuance are complied with.” Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). Moreover, the legislature has the nearly unfettered power and authority, in the exercise of the police power of the State, to change the requirements for the lawful sale and consumption of alcoholic beverages. The case of Davis v. Query, 209 S.C. 41, 39 S.E.2d 117 (1946) dealt with the South Carolina Tax Commission’s authority to promulgate regulations placing limits on a retail liquor dealer’s purchases of alcoholic beverages from wholesalers. In upholding the Commission’s authority to promulgate such regulations, the South Carolina Supreme Court noted:

[The dealer] overlooks the fundamental fact that he is not engaged in an ordinary business and has no vested right to operate, despite his license, in any manner other than that dictated by the state; his is a perilous business; there is probably no field in which legislative bodies, and the people themselves in referenda, have been more fickle.

 

Id., 39 S.E.2d at 124 (emphasis added). Because the license is issued pursuant to the police power, the licensee takes it subject to the right of the State, at any time, for the public good, to make further restrictions and regulations. Dantzler v. Callison, 230 S.C. 75, 94 S.E.2d 177 (1956).

Furthermore, Act 70 amended prior law. Amended statutes must be construed as if the original statutes were repealed and a new and independent act in amended form adopted, unless contrary intent is clearly indicated. Windham v. Pace, 192 S.C. 271, 6 S.E.2d 270 (1939). The repeal of a statute has the effect of blotting out the statute as if it had never existed and puts an end to all proceedings under it which have not been prosecuted to final judgment. Taylor v. Murphy, 293 S.C. 316, 360 S.E.2d 314 (1987). Indeed, unlike Act 415 of 1996, Act 70 contains no savings clause which preserves pending proceedings. Because Petitioner’s application for a Seven-Day Permit was filed on July 15, 2003, after the June 25, 2003 effective date of Act 70, the application must be processed under Act 70, which, from June 25, 2003 forward, controls the issuance of temporary minibottle licenses and Seven-Day Permits.

Based upon the foregoing,

IT IS HEREBY ORDERED that, pursuant to the Court’s En Banc Order issued July 20, 2004, Petitioner’s application for a Seven-Day off-premises beer and wine permit is DENIED as a matter of law.

AND IT IS SO ORDERED.

 

                                                                                    _____________________________________

                                                                                    Marvin F. Kittrell

                                                                                    Chief Administrative Law Judge


December 14, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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