Petitioners.
Thereafter, the Petitioners timely filed requests for contested case hearings. See Stipulation No. 5 and Exhibit 1 to the Stipulations.
On September
4, 2003, the Department filed its Petition for Hearing En Banc in the Piedmont
cases. The Petition was granted by Order dated September 18, 2003. See Stipulation No. 7. The other Petitioners each moved to intervene in the en
banc hearing, and their respective motions were granted on October 23, 2003.
The October 23, 2003 Order also required the City, the sole protestant in these
cases, to participate and file a brief within fifteen days of receipt of the
Department’s brief. See Stipulation Nos. 8 and 9. On October 24, 2003,
the City filed a motion to intervene, which was granted by Order dated October
29, 2003.
LEGISLATIVE HISTORY
Prior to
1993, “Sunday sales” of alcoholic beverages were authorized pursuant to S.C.
Code Ann. § 61-5-180 (Supp. 1994)(recodified in 1996 as S.C. Code Ann. § 61-6-2010
(Supp. 1997)). This section authorized the Department to issue temporary
alcohol permits, valid for a period not to exceed twenty-four hours. These
permits further authorized the possession, sale and consumption of “liquor in
sealed containers of two ounces or less” only to “bonafide not for profit”
entities and businesses which were licensed to sell alcoholic beverages at the
time of the application for a temporary permit. The Department was authorized
to issue these permits only in counties or municipalities which had held a
referendum wherein the majority of the qualified voters, at a general election,
had opted for the temporary permits.
By 1993 Act
164, Part II, Section 55, effective June 21, 1993, the General Assembly enacted
S.C. Code Ann. § 61-9-312 (Supp. 1994) (recodified in 1996 as S.C. Code Ann. §
61-5-510 (Supp. 1997)). Section 61-9-312(A) specifically provided:
In counties or
municipalities where temporary permits are authorized to be issued pursuant to
Section 61-5-180, in lieu of the retail permit fee required pursuant to Section
61-9-310, 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 61-9-90, 61-9-100, 61-9-110, and
61-9-130.
Act 164 also contained
specific provisions setting forth the relevant dates for determining what type
of referendum was required. Subsection (C), although not codified, provided:
The special version of a
retail beer and wine permit provided in Section 61-9-312 of the 1976 Code in
subsection A, may be issued in counties or municipalities where temporary
permits are authorized to be issued pursuant to Section 61-5-180 only after the
effective date of this section. In counties or municipalities where temporary
permits are authorized to be issued pursuant to Section 61-5-180 as of the
effective date of this section, county or municipal election commissions shall
conduct a referendum upon petition, as provided in section 61-5-180, solely to
determine if the special permits authorized in Section 61-9-312 are approved.
If approved pursuant to the referendum provided in this subsection or pursuant to
Section 61-5-180 after the effective date of this section, the special permits
may be issued as provided in Section 61-9-312.
Thus, this statute
specifically required counties which had previously had a favorable referendum
allowing temporary permits under Section 61-5-80 to hold a new referendum
specifically addressing off-premise beer and wine permits.
In 1996, the
General Assembly passed and the Governor signed into law Act No. 415 (Act 415),
1996 S.C. Acts and Joint Resolutions. Act 415, which was signed by the
Governor on June 4, 1996, recodified many of the statutes relating to alcoholic
beverages, including those provisions relating to Seven-Day Permits. Section
61-9-312 was recodified as Section 61-4-510, and Section 61-5-180 was recodified
as Section 61-6-2010. Act 415 amended and recodified Section 61-4-510(A) to
read:
In counties or
municipalities where temporary permits are 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.
The annual fee for this special retail permit is one thousand dollars.
Act 415 amended and recodified Section 61-6-2010
to read, in pertinent part:
The department may issue
a temporary permit to allow the possession, sale, and consumption of alcoholic
liquors in minibottles.
* * * *
Permits authorized by
this section may be issued only in those counties or municipalities where a
majority of the qualified electors voting in a referendum vote in favor of the
issuance of the permits. The county or municipal election commission, as the
case may be, must conduct a referendum upon petition. . . not less than thirty
nor more than forty days after receiving the petition . . . The state election laws
apply to the referendum, mutatis mutandis. The election commission must
publish the results of the referendum and certify them to the South Carolina
Department of Revenue. The question on the ballot must read substantially
as follows:
“Shall the South
Carolina Department of Revenue and Taxation 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
minibottles to bona fide nonprofit organizations and business establishments
otherwise authorized to be licensed for sales?”
(Emphasis added).
Although it
was not codified, Section 61-4-510(B) was enacted as part of Act 415. This
subsection provided:
(B) The special version
of a retail beer and wine permit provided in subsection (A) may be issued in
counties or municipalities where temporary permits are authorized to be issued
pursuant to Section 61-6-2010 only after June 21, 1993. In counties or
municipalities where temporary permits are authorized to be issued pursuant to
section 61-6-2010 as of June 21, 1993, county or municipal election commissions
must conduct a referendum upon petition, as provided in Section 61-6-2010,
solely to determine if the special permits authorized in subsection (A) are
approved. If approved pursuant to the referendum provided in this subsection
or pursuant to Section 61-6-2010 after June 21, 1993, the special permits may
be issued as provided in subsection (A).
Thus, Act 415
specifically provided the effective dates for its provisions and set forth the
exact situations under which a new referendum would be required. Act 415
further contained a savings clause in Section 6 which saved all pending
proceedings and all rights and liabilities existing at the time the act took
effect, and in Section 7, the Act specifically stated: “The provisions of this
act apply to licenses, permits and certificates applied for on or after the
effective date of this act.”
Act 462 of
1996 was signed by the Governor on July 2, 1996, approximately one month after
Act 415. Section 24A of Act 462 further amended Sections 61-9-312 and 61-5-180
but failed to reference the previous recodifications. Act 462 employed
substantively identical language to that in Act 415 regarding recodified
sections 61-4-510(A) and 61-6-2010. Both Act 415 and Section 24 of Act 462
became effective January 1, 1997. The Code Commissioner addressed this
situation as follows:
The 1996 amendment
substantially revised [former] Section 61-9-312, recodified by 1996 Act No. 415
Section I as Section 61-4-510, and repealed by Section 5 of the same Act. At
the direction of the Code Commissioner, the amendment affected by 1996 Act No.
462 Section 24A to former Section 61-9-312 has been set forth in this section.
References to code sections that were repealed by 1996 Act No. 415 Section 5
have been revised to conform with the recodification conversions table
appearing in 1996 Act No. 415 Section 8, with one exception. A reference that
appeared in subsection (A), following “Sections 61-4-120, 61-4-130, and
61-4-140," to Section “61-9-130,” which was repealed by 1996 Act No. 415
Section 5 and was not set forth in the conversion table of that Act, was
deleted.
S.C. Code Ann. § 61-4-510 (Supp. 2002).
Finally, by
Act 70 of 2003, effective June 25, 2003, the General Assembly again amended
Sections 61-4-510 and 61-6-2010. The amendments 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. Subsection 5 of Act 70 amended § 61-4-510(A) to read:
(A) 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. . . .
(Emphasis added).
Furthermore, Section 61-6-2010(C)(1) was amended to revise the referendum
requirements for temporary and Seven-Day Permits and now reads in pertinent
part:
Permits authorized by
this section may be issued only in those counties or municipalities where a
majority of the qualified electors voting in a referendum vote in favor of the
issuance of the permits. . . . The referendum must be conducted at the next
general election. . . . The state election laws shall apply to the referendum,
mutatis mutandis. The election commission shall publish the results of the
referendum and certify them to the South Carolina Department of Revenue. 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?’
S.C. Code Ann. § 61-6-2010 (Supp. 2003).
DEPARTMENT’S LICENSING PROCEDURES
Prior to the
amendment of S.C. Code Ann. § 61-4-510 by Act 415 of 1996, the Department’s practice
was to issue Seven-Day Permits only in counties or municipalities which had
submitted certified results of referendums addressing both the questions of
temporary permits for liquor sales and permits for off-premise beer and wine
sales. See Stipulation No. 11. Following the City of Summerville’s
referendum on May 14, 2003, held pursuant to S.C. Code Ann. § 61-6-2010 (Supp.
2002), businesses within the City of Summerville sought Seven-Day Permits. At
first the Department sought to deny these permits because the Summerville
referendum did not contain specific language concerning off-premises beer and
wine permits. However, the Department subsequently determined, based upon the
language of Act 415, Section 1, that a separate referendum for off-premises
beer and wine permits was not required. See Stipulation No. 12.
Currently, the Department issues Seven-Day Permits in four counties and ten
municipalities. See Exhibit 2 to the Stipulations for dates of
referendums.
ISSUES
The
following issues were presented for determination:
(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)?
(2) What is
the effect of Act 70 of 2003, effective June 25, 2003, on the Department’s
authority to issue Seven-Day Permits?
DISCUSSION
Department’s Authority
to Issue Seven-Day Permits
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). Here, a majority of the Greenville electors voted
in favor of the issuance of temporary permits on June 13, 2000, 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.
The City in
its protest contends that its referendum held June 13, 2000 did not confer upon
the Department the authority to issue Seven-Day Permits because the referendum
addressed only the question of temporary minibottle permits and did not
specifically address off-premise sales of beer and wine. Prior to the
enactment of Act 70, however, 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, Greenville’s
referendum, which authorized temporary permits and which was held after June
21, 1993, authorized the Department to issue Seven-Day Permits, notwithstanding
the absence of specific language to that effect.
The City
further argues that the June 13, 2000 referendum did not give sufficient notice
to the electors that a vote in favor of temporary permits was tantamount to a
vote for Seven-Day Permits. This argument is without merit. S.C. Code Ann. §
61-6-2010 provides that the state election laws shall apply to any referendum
conducted pursuant to that section. Thus, S.C. Code Ann. § 7-17-30 (Supp.
1999) governed the time in which any challenge to the referendum had to be
raised. That section provides that any protest or contest to an election must
be filed by noon Wednesday following the day of the declaration by the board of
canvassers of the result of the election. In this case, 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, this is neither the proper time nor the proper forum for the City
to complain of the wording of the June 13, 2000 referendum.
Effect of Act 70 on the
Department’s Authority to Issue Seven-Day Permits
Based on the
statutes in effect at the time of the City’s June 13, 2000 referendum, the
City’s referendum authorizing the issuance of temporary permits for Sunday
minibottle sales also, as a matter of law, authorized the issuance of Seven-Day
Permits. Therefore, the remaining question for determination is whether Act 70
of 2003, effective June 25, 2003, alters the Department’s authority to issue
Seven-Day Permits in the City of Greenville. We conclude that Act 70 does
limit the Department’s authority.
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, all of
the applications for Seven-Day Permits are for locations within the City of Greenville. Thus, the Department’s authority to issue Seven-Day Permits to these
applicants 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 to the
applicants in the instant case.
The
Petitioners and the Department argue that the relevant portions of Act 70
should not apply to a jurisdiction such as the City of Greenville which has
already held a minibottle referendum under previously existing law. This
argument, however, is unpersuasive for the following reasons.
First,
nothing in the literal language of the amended sections suggests any exemptions
from the coverage of Act 70. “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). Here, 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.” In
the instant case, the City of Greenville has not held a referendum that
specifically authorizes the off-premises sale of beer and wine on Sundays.
Second,
there is 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, no Seven-Day Permits can be issued in the absence of
a referendum that specifically authorizes such permits. Further, 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.
The
Department and the Petitioners also assert that since Act 70 affects the
“rights” of the Department to issue Seven-Day Permits and of the Petitioners to
apply for such permits, it cannot be applied to require the City to hold a new
referendum before the permits can be issued. This argument is unpersuasive,
since it ignores the 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).
Having held
that Act 70 of 2003 prohibits the Department from issuing Seven-Day Permits
unless the jurisdiction involved has held a favorable referendum specifically
approving the off-premises sale of beer and wine on Sundays, the final question
this Court must address is whether the applications of Piedmont Petroleum Corp.
for its five stores and the application of Publix Super Markets, Inc., d/b/a
Publix # 602, should be processed under the old law, since those applications
were filed prior to the June 25, 2003 effective date of Act 70. Giving due
consideration to all relevant arguments, the applications must be processed
under Act 70.
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. Since Piedmont’s and Publix’s applications were still pending on
June 25, 2003, they must proceed under Act 70.
CONCLUSION
Prior to
June 25, 2003, pursuant to the City’s referendum held on June 13, 2000, the
Department had 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 to the
Petitioners.
AND IT IS
SO ORDERED.
KITTRELL,
C.J., ANDERSON, GEATHERS, MATTHEWS and STEVENS, JJ., concur.
July 20, 2004
Columbia, South Carolina