SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-90 (Supp. 1999) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1999) for a contested hearing. The Petitioner, Ray Webb Crisp d/b/a The Station, seeks both an on- premise and off-premise beer and wine permit for a location at 27300 Highway 221 N. in Enoree, South Carolina. Respondent South Carolina Department of Revenue (Department) filed a Motion to be Excused setting forth that but for the protests of the Protestants, this permit would have been issued. This motion was granted by my Order dated May 25, 2000. A hearing was held before me on August 2, 2000 at the offices of the Administrative Law Judge Division (ALJD or Division) in Columbia, South Carolina.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of proof upon the Petitioner, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of time, date, place and original subject matter of the hearing was given to the Petitioner, Protestants, and the Respondent.

2. The Petitioner seeks an on-premise beer and wine permit and an off-premise beer and wine permit for "The Station" at 27300 Highway 221 N., Enoree, South Carolina.

3. The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1999) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit.

5. The proposed location is currently an empty lot. The Petitioner intends to open a convenience store at the site. The store would be situated in area that is both commercial and residential. The site of the proposed location has been previously permitted for the sale of beer and wine off-premises for fifteen years. Additionally, though the proposed location has not been permitted within the past seven years, the character of the area has not substantially changed since it was permitted in the past. However, the traffic upon the highway in which the Petitioner's location would be situated has substantially increased.

6. The issuance of the permit is being contested by D. Larry Pitts and Charles C. Downey, residents of the area of the proposed location. The Protestants object to the issuance of a permit due to the presence of numerous houses within two hundred (200) feet to eight hundred (800) feet of the Petitioner's proposed location. More specifically, one of the Protestants resides approximately two hundred (200) feet from the proposed location. The Protestants also are concerned that the Petitioner would convert his business into a nightclub after being issued an on-premise permit, as another local community store had done. Additionally, the Protestants object to the permit because of the proposed location's proximity to a church. Finally, the Protestants were concerned about the potential danger that increased traffic would create.

The Protestants' arguments appear to be based on a sincere concern for their community. However, though the evidence offered raises "potential" concerns that this business would change the integrity of the vicinity or create an overall adverse impact on the community, the evidence did not substantiate the Protestant's concerns in this matter. In order to deny this permit, direct evidence of an adverse impact on the community is necessary, particularly in light of the fact that the site of the proposed location has been previously permitted. Nevertheless, those permits were only for the sale of beer and wine off-premises. Therefore, given the density of the traffic and the residences in this area, this location would be suitable solely for an off-premise permit.

7. I find that the Petitioner's proposed location is suitable for an off-premise beer and wine permit, but not for an on-premise beer and wine permit.

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1999) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 1999) set forth the requirements for the issuance of a beer and wine permit.

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. V. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. 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 operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

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 by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, 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. The Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

9. The Petitioner meets the statutory requirements for holding an off-premise beer and wine permit. However, the Petitioner's proposed location is not suitable for an on-premise beer and wine permit.

Based upon the above Findings of Fact and the Conclusions of Law, it is hereby:

ORDERED that the application for an off-premise beer and wine permit of Ray Webb Crisp, d/b/a The Station, be granted.

IT IS FURTHER ORDERED that the Department of Revenue issue an off-premise beer and wine permit upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

October 19, 2000

Columbia, South Carolina