ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Shirley Waters, d/b/a Bledsoe’s Grocery (Waters) filed with the South Carolina Department of
Revenue (DOR), an application for a renewal of an on premises beer and wine permit for 4134
Whitmire Hwy., Clinton, South Carolina. A protest under S.C. Code Ann. § 61-4-525 was filed
by several individuals in the community with Sandy Leopard acting as the spokesperson for the
group. This matter was heard on April 12, 2005, at the Laurens County Courthouse.
II. Analysis
A. Findings of Fact
Based on the preponderance of the evidence, the following Findings of Fact are entered:
The business location here under review has been operated for a number of years by Mary E.
Bledsoe as a sole proprietor. During those years, the business held an on-premises beer and wine
permit
issued in the name of Mary E. Bledsoe. Ms. Bledsoe died on November 2, 2004. Under her last
will and testament, the real property and the business assets located at 4134 Whitmire Hwy.,
Clinton, South Carolina passed to Shirley L. Waters. Further, Ms. Waters also was named as the
personal representative of the Estate of Ms. Bledsoe.
Ms. Bledsoe did not file a renewal application prior to the permit expiration date of November
30, 2004. Likewise, after her death, neither did the Bledsoe Estate file a renewal application
prior to the November 30, 2004 permit expiration date. Thus, the permit expired without a
renewal application having been filed.
Subsequent to November 30, 2004, on December 16, 2004, an application was filed by Shirley
L. Waters seeking a beer and wine permit to be utilized at the same location at which Ms.
Bledsoe previously utilized her beer and wine permit. While Ms. Waters did not hold a beer and
wine permit, she nonetheless employed a renewal application for her request.
B. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Renewal Inappropriate For An Applicant Not Having An Existing Permit
Certainly, seeking a beer and wine permit through a renewal process is authorized. See, e.g.,
S.C. Code of Laws Ann. sec. 61-2-80 ("The State, through [DOR] . . . is authorized to establish
conditions or restrictions which [DOR] considers necessary before issuing or renewing a license
or permit."); S.C. Code of Laws Ann. sec. 61-4-525 ("A person . . . may protest the issuance or
renewal of [a beer and wine] permit."). However, what is authorized is a "renewal." That term
in its common and ordinary meaning requires that the one utilizing the renewal process to have
or have had a permit which that party now seeks to reestablish. Black's Law Dictionary (8th ed.
2004) (where renewal means "[t]he act of restoring or reestablishing.").
Thus, two questions must be answered in this case. Who seeks the permit and is that person one
who has or has had a permit for which a renewal is now being sought? In this case, the renewal
is sought by Shirley L. Waters in her individual capacity, and she has not had a beer and wine
permit in her name for the location of 4134 Whitmire Hwy., Clinton, South Carolina. Thus, she
is not eligible to utilize the renewal process for obtaining a permit. These conclusions are
supported by the facts of this case.
Here, Ms. Waters filed an application in her individual capacity, not as the personal
representative of the Estate of Mary Bledsoe. Indeed, the application establishes that Ms. Waters
signed the application in her individual capacity, identifies Ms. Waters by social security
number, gives her date of birth, states her date of residency, and gives her home address. No
provisions of the application state facts or identify the Bledsoe Estate as the applicant. For
example, the application does not have any signature noted as "representative for the Bledsoe
Estate," and nothing in the application signifies "signed on behalf of the Estate of Mary E.
Bledsoe." Accordingly, under the facts of this case, the permit is sought by Ms. Waters in her
individual capacity.
Second, the evidence establishes that Ms. Waters has not held in her name a beer and wine
permit for the 4134 Whitmire Hwy., Clinton, South Carolina location. Instead, the evidence
establishes that a beer and wine permit has been held for that location by Ms. Bledsoe. Thus,
since Ms. Waters has no permit which she can renew, the request for a renewal cannot be
granted.
2. Non-Transferable Permit
An additional ground for denying the renewal application exists here since Ms. Waters obtained
no permit from Ms. Bledsoe.
It is well settled that all beer and wine permits are owned by the State with such permits being
specifically identified as non-transferrable. See Section 61-2-140(B) ("Licenses and permits are
the property of [DOR] and are not transferable."). Thus, the beer and wine permit issued to Ms.
Bledsoe was not transferred to Ms. Waters through the last will and testament of Ms. Bledsoe.
Accordingly, not having a permit to renew, Ms. Waters was in error when she pursued a renewal
process. Therefore, the renewal application must be denied.
3. Expired Permit
Further, not only was the permit non-transferable, but two events caused the permit to terminate
leaving no renewal process available.
First, the permit held by Ms. Bledsoe terminated upon her death. See 45 Am. Jur. 2d
Intoxicating Liquors § 171 ("Nor is a liquor license generally transferable by operation of law, it
being held, for example, that upon the death of a licensee the license terminates."); John Barth
Co. v. Brandy, 161 N.W. 766 (Wis. 1917) ("Although the license is for a fixed term it comes to
an end with the life of the licensee."). Thus, the permit having ended with her death on
November 2, 2004, nothing remained to be renewed. Therefore, the renewal application here
must be denied.
Second, even if the permit had not expired on Ms. Bledsoe's date of death, the permit expired
when the permit's two year term ended on November 30, 2004. As of that date, no application
for a renewal had been filed. Thus, just as with the termination due to the death of Ms. Bledsoe,
since the permit terminated on November 30, 2004, nothing remained to be renewed. Therefore,
the renewal application must be denied.
4. Consent of the Probate Court
Finally, one provision of South Carolina law addresses a permit held by a deceased party.
However, that statute has not been satisfied here.
Section 61-6-900 allows the personal representative to "continue the operation of the business
covered by the license" under two conditions. First, the personal representative must obtain "the
consent of the probate court" and second, DOR must then issue a permit to the personal
representative. Here, several factors are lacking which prohibit the applicability of sec. 61-6-900
to the facts of this case.
No evidence in this record establishes that the probate court made an affirmative grant of
permission to allow the personal representative to continue the operation of Ms. Bledsoe's
business at 4134 Whitmire Hwy., Clinton, South Carolina. Rather, all that is shown is the
appointment of Ms. Waters as the personal representative of the Estate. The mere appointment
as the Estate's personal representative is far removed from the affirmative duty to obtain consent
from the probate court to continue the business of the deceased. Therefore, lacking such
consent, no permit can be granted here.
Further, even if the affirmative consent had been obtained from the probate court, the personal
representative is only allowed to "continue the operation of the business covered by the license."
In this case, the permit expired on November 30, 2004. Thus, once the permit expired, there is
no business "covered by the license." Accordingly, sec. 61-6-900 does not provide a means for
obtaining a beer and wine permit in this case. Therefore, the renewal application must be
denied.
III. Order
ACCORDINGLY, based upon the Findings of Fact and Conclusions of Law, it is hereby
ordered:
DOR shall deny the Waters' application for an on premises beer and wine permit at 4134
Whitmire Hwy., Clinton, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: May 16, 2005
Greenville, South Carolina |
