ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. § 61-4-520 (Supp.
1999); S.C. Code Ann. § 1-23-600, et seq., (Supp. 1999); and S.C. Code Ann. Regs. 7-96 (1976) for a contested case
hearing. The Petitioner seeks an on-premises beer and wine permit for the location at 1701 Dreher Island Road, Chapin,
South Carolina. The Respondent previously declined to process the Petitioner's application for the beer and wine permit
because the proposed location had been found unsuitable by the Respondent. In his Order dated September 24, 1999, the
Honorable C. Dukes Scott, Administrative Law Judge, ordered that the Department process the application because the
Petitioner had shown a material change with respect to the proposed location. This matter is presently before the Division
because of public protests by concerned citizens concerning the suitability of the proposed location. One of the Protestants,
Margaret Fulcher, filed a Motion to Intervene, which was granted by my Order dated March 27, 2000. After notice to all
parties, a hearing in this matter was conducted on April 19, 2000. At the hearing, another Protestant, Melvin Eckles, also
made a Motion to Intervene, which was also granted.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their
credibility, I make the following Findings of Fact by a preponderance of the evidence:
1. The proposed location was licensed for the sale of beer and wine as "Buck's Marina" from 1965 to 1989. During that
time, nearby residents complained about rowdy crowds, fighting, drinking outside the location, loud music, foul language,
and public drunkenness by patrons of Buck's Marina. The residents also complained about problems in a nearby
community park.
2. On August 21, 1992, John E. O'Cain, Jr. filed an application with the ABC Commission for an on-premises beer and
wine permit for the same location at 1701 Dreher Island Road, Chapin, South Carolina. O'Cain planned to include video
poker machines, pool tables, and a juke box. By Order filed on February 11, 1993, the ABC Commission denied O'Cain's
application for an on-premises beer and wine permit.
3. On June 4, 1997, James B. Cameron filed an application with the Respondent for an on-premises beer and wine permit
for the location at 1701 Dreher Island Road, Chapin, South Carolina. On March 30, 1998, the Administrative Law Judge
Division ordered the Respondent not to process Cameron's application because no material changes were made with
respect to the proposed location as to any factors warranting the Respondent's processing of the application.
4. On March 23, 1999, the Petitioner filed an application with the Respondent for an on-premises beer and wine permit for
the location at 1701 Dreher Island Road, Chapin, South Carolina.
5. By Order dated September 24, 1999, the Honorable C. Dukes Scott determined that "[A]lthough the location's
proximity to residential areas has not changed, the facility itself has changed significantly. In the past, there was a small bait
shop located on the premises, and prior applicants proposed to add pool tables and gaming machines to the bait shop.
While licensed in the 1970s and 1980s, the location was a hangout for an element inconsistent with the residential nature of
the area. The Petitioner has since changed the nature of the business. In contrast to what it was before, the Petitioner has
expanded and improved the facility and turned it into a family-oriented business . . .[T]he general thrust of the location is
now a restaurant in which the serving of beer and wine may be found to be compatible with the area." Judge Scott also
determined that "[T]here are sufficient material changes with respect to the proposed location as to other factors [as
opposed to the location's proximity to residential areas] to warrant processing the Petitioner's application" 99-ALJ-17-0322-CC (September 24, 1999).
6. Al Harding, the principal officer of the Petitioner, was at least twenty-one years of age at the time of the application.
7. Harding has been a legal resident of the State of South Carolina for over thirty (30) days and has maintained his principal
place of abode in the State of South Carolina for over thirty (30) days prior to the application.
8. Harding has never had a beer and wine permit or any other alcoholic beverage license or permit issued to him revoked.
9. Harding is of good moral character. Harding does not have a criminal record.
10. The hours of operation for the proposed location are as follows: Monday through Thursday, 11:00 a.m. to 8:00 p.m.;
Friday, 11:00 a.m. to 11:00 p.m.; Saturday, 8:00 a.m. to 11:00 p.m.; and Sunday, 11:00 a.m. to 8:00 p.m.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. §
61-2-260 (Supp. 1999).
2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the
agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness
or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops,
Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984).
4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the
relevance and weight of any testimony offered.
5. 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 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). Any evidence adverse to the
location may be considered. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the
Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of
other licensed locations in the immediate vicinity, as well as the existence of small children in the area.
6. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to
determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts.
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
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 alone to deny
the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. S.C. Code Ann. § 61-4-525 (Supp. 1999) provides that a person residing in the county in which a beer and wine permit
is requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit
if he files a written protest.
9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the
police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).
10. Standards for judging the suitability of a proposed location for the sale of beer and wine are not to be determined by the
local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State
of South Carolina. The sale of beer and wine is a lawful enterprise in South Carolina, regulated by the State.
11. After considering all the relevant factors, I find that the location is suitable for the on-premises sale of beer and wine.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner's application for an on-premises beer and
wine permit for the location at 1701 Dreher Island Road, Chapin, South Carolina, subject to the following restrictions:
1. The hours of operation shall be as follows: Monday through Thursday, 11:00 a.m. to 8:00 p.m.; Friday, 11:00 a.m. to
11:00 p.m.; Saturday, 8:00 a.m. to 11:00 p.m.; and Sunday, 11:00 a.m. to 8:00 p.m.;
2. There shall not be any coin-operated games or pool tables at the premises;
3. The premises shall have adequate parking spaces on the side of the building not facing Dreher Island Road, and the
parking area directly in front of the building shall be closed and landscaped within thirty (30) days from the date of this
Order;
4. The Petitioner shall not operate a "bar" area on the inside of the premises; and
5. The Petitioner shall not advertise the sale of beer and wine at the premises.
AND IT IS SO ORDERED.
______________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
May 3, 2000
Columbia, South Carolina |
