SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999). This tribunal must determine whether to grant or deny the application of JoAnn Rainwater for a temporary permit, not to exceed twenty-four hours, to sell alcoholic liquors on Sunday ( local option permit) at Night Eyes Bar & Grill, 1319 Lake Dogwood Drive, West Columbia, South Carolina. After notice to the parties and Protestant, a hearing was conducted on September 14, 2000. Based upon the evidence presented, this tribunal finds that the Petitioner satifies the statutory requirements enacted by the General Assembly for the issuance of a local option permit. Any motions or issues raised in the proceedings but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. On or about May 19, 2000, JoAnn Rainwater submitted an application for a local option permit, not to exceed twenty-four hours, on behalf of Petitioner to the South Carolina Department of Revenue for the premises located at 1319 Lake Dogwood Drive, West Columbia, Lexington County, South Carolina. Petitioner's application is incorporated into the record by reference.

2. Petitioner operates the proposed location as a bar and grill. Since 1987, various proprietors have operated a business at this location under different beer and wine permits and minibottle liquor licenses. Petitioner was issued a beer and wine permit and minibottle license on April 26, 2000; both are currently valid.

4. Lexington County is one of five counties in the state which has passed a referendum allowing Sunday sales of beer, wine, and liquor (minibottle) for on premises consumption.

5. Rep. John M. Knotts, Jr. opposes the issuance of the local option permit in question on the grounds that the proposed location is unsuitable because (1) Petitioner operated the location as a sexually oriented business by providing topless entertainment in violation of the zoning ordinances of Lexington County, and (2) the business is situated in close proximity to churches, which often conduct funerals and other services on Sundays.

CONCLUSIONS OF LAW

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

1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999), S.C. Code Ann. § 1-23-600(B) (Supp. 1999), and S.C. Code Ann. § 1-23-310 et seq. (Supp. 1999).

2. S.C. Code Ann. §§ 61-4-120 (Supp. 1999) and 61-6-2010 ( as amended by Act 391 of 2000) establish the criteria for the issuance of a local option permit. The requirements are not extensive. In addition to the payment of fees, all that is required to procure a local option permit is (1) a license to sell alcoholic liquors during those hours when such sales are lawful (2) in a county or municipality which has passed a referendum allowing the Sunday sales of beer, wine, and liquor (minibottle) for on premises consumption. ⁽¹⁾

Unlike initial and renewal applications for a beer and wine permit or minibottle license, the suitability of the location and the character of the applicant cannot be considered in a local option application. Under the initial beer and wine application provision, §61-4-520, the suitability of the location and character of the applicant are key factors in the issuance of a permit. Under the initial minibottle application provision, §61-6-1820, our Supreme Court has stated that the suitability of location is a proper consideration in light of the statutory provision which allows discretion in granting a license. ⁽²⁾ Therefore, while these factors are significant during the initial application and renewal proceedings, §61-6-2010 does not authorize this tribunal to consider similar criteria in evaluating the application for a local option permit. Accordingly, this tribunal cannot by fiat exercise discretion and consider the fitness or suitability of the location. ⁽³⁾ This tribunal has no legislative powers, and the justice or wisdom of statutes rests exclusively with the General Assembly. See Smith v. Wallace, 295 S.C. 448, 369 S.E.2d 657 (Ct. App. 1988).

3. This tribunal is respectful of Protestant's sentiments concerning the issuance of the local option permit in question. Nevertheless, there was no sufficient evidentiary showing that the statutory requirements for issuance of the permit have not been met.

4. Moreover, Petitioner meets the statutory criteria enacted by the South Carolina General Assembly for the issuance of a local option permit. The Department shall continue to process Petitioner's application for a local option permit.

ORDER

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

ORDERED, that the Department shall continue to process Petitioner's application for a local option permit for the aforementioned address.

AND IT IS SO ORDERED.

___________________________

JOHN D. GEATHERS

Administrative Law Judge

October 16, 2000

Columbia, South Carolina.

1. Section 61-6-2010 also provides procedures for the filing of a referendum for a 7-day off-premises beer and wine local option.

2. Although the suitability of the proposed location is not listed in § 61-6-1820 as a condition of licensing, such a consideration is proper. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

3. In an adjudication of an application or renewal application for a beer and wine permit and minibottle license, the trier of fact may consider the suitability of the location. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

"The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may find the location to be unsuitable . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).