SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division ("ALJD") pursuant to S.C. Code Ann. § 61-2-80 (Supp. 2000) and S.C. Code Ann. § 1-23-600 (Supp. 2000) for a hearing pursuant to the application of Stanley Myers, d/b/a The Bait House ("Petitioner") for an on-premises beer and wine permit at 7113 S. Island Road, Georgetown, South Carolina. Petitioner applied for an on-premises beer and wine permit, however, the South Carolina Department of Revenue ("Department") denied Petitioner's application because of public protest by a citizen, Reverend Broderick M. Reid, Sr. ("Protestant"), concerning the suitability of the proposed location.

A hearing was held before the undersigned Administrative Law Judge ("ALJ") in Columbia, South Carolina, on June 19, 2001. Notice of the time, date and place of the hearing was timely given to all parties and the protestant. Protestant was not present for the hearing. Department was excused from appearing at the hearing.

SUMMARY OF TESTIMONY

Stanley W. Myers testified at the hearing that he has been the owner of The Bait House and has maintained a beer and wine permit at that location since 1999. Petitioner testified that to his knowledge that particular location has maintained a beer and wine permit since the 1960's, prior to his ownership of The Bait House. According to Myers, the location primarily sells fishing bait. Myers testified that he nor the one employee of The Bait House has a criminal record.

Myers had no complaints by local residents, and the location had no incidents involving police according to Petitioner. He testified that he has never witnessed anyone using the Mt. Olive AME Church parking lot in order to patron The Bait House.

David E. Stephens has been a member of the Mt. Olive AME Church for about three years and lives across the street from the proposed location. He testified that he is also a patron of The Bait House and has no knowledge of alcohol consumption in the church parking lot. Stephens was not aware of the church ever being disturbed by the operation of the neighboring business. Stephens informed the tribunal that church services were held on Sunday at 11:00 a.m. and Tuesday at 6:30 p.m.

Rev. Reid of the Mt. Olive AME Church was not present to testify at the hearing, however, the written protest he submitted to the Department indicated that he was concerned about the issuance of a beer and wine permit to the proposed location. Reid stated in the written protest that patrons of The Bait House have used the church's parking lot in the past. According to Reid, patrons of The Bait House have been observed drinking alcohol outside of the proposed location which disturbs church services.

FINDINGS OF FACT

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

• Notice of the time, date, place and subject matter of the hearing was given to all

the parties in a timely manner.

• The Petitioner, The Bait House, through its owner, Stanley Myers, is seeking an

on-premises beer and wine permit for the establishment located at 7113 S. Island Road, Georgetown, South Carolina.

• This location has been licensed with a beer and wine permit since 1999.
• The Department filed a Motion to be Excused from participating in this

proceeding, and the motion was granted.

• The location's normal hours of operation are as follows: Monday through Friday,

6:00 a.m. until 7:00 p.m.; Saturday, 5:30 a.m. until 6:00 p.m.; Sunday, 6:00 a.m. until 10:00 a.m.

• The Petitioner is of good moral character, is a legal resident of the United States,

has maintained his principal place of abode in South Carolina for at least thirty days before the date of the application for the permit, is over twenty-one (21) years of age, and has not had a permit revoked within the two (2) years preceding the date of the filing of this application.

• Notice of the application has appeared at least once a week for three (3)

consecutive weeks in Georgetown Times, a newspaper of general circulation in the local area where the applicant proposes to engage in business, and notice was posted at the proposed location for fifteen days.

• The proposed location is approximately 250 feet away from Mt. Olive AME

Church.

• In the Agency Transmittal that was filed with the ALJD on May 8, 2001, the

Department stated that it was denying Petitioner's application because of public protest by Reverend Reid. Furthermore, the Department stated that but for the question being raised by Protestant over the suitability of the location, the Department would have issued the permit. The Department does not oppose Petitioner's application and would have issued the permit but for the protest.

• I find that the evidence did not establish that the granting of the permit for this

location would have an adverse impact on the community. Therefore, the proposed location is suitable for the on-premises beer and wine permit with the restrictions set forth below.

CONCLUSIONS OF LAW

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

• S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the Administrative

Law Judge Division to hear contested cases under the Administrative Procedures Act.

• S.C. Code Ann. § 61-4-525 (Supp. 2000) grants to the Administrative Law Judge

Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

• S.C. Code Ann.§ 61-4-520 (Supp. 2000) sets forth the requirements for

the issuance of a beer and wine permit which provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

1. The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.

2. The retail applicant is a legal resident of the United States, has been a legal resident of this Sate for at least thirty days before the date of application, and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.

3. The wholesale applicant is a legal resident of the United States and has been a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

• The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

5. The applicant is twenty-one years of age or older.

6. The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

7. The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches.

8. Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business.

9. Notice has been given by displaying a sign for fifteen days at the site of the proposed business.

4. The applicant meets all the statutory requirements set forth above and has made an adequate showing on each of the above grounds for issuance of the permit.

5. Although "proper location" is not statutorily defined, broad discretion is vested in the Division 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).

6. As a trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (S.C. Ct. App. 1984).

7. The determination of suitability of a 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. 335 (1985).

8. S.C. Code Ann § 61-6-120 (Supp. 2000) states that the Department shall not issue certain licenses to a place of business within a certain distance of a church, school or playground; however, locations for which beer and wine permits are requested are not subject to those specific restrictions.

9. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to the granting of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E. 2d 801 (1973).

• 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 or license is not 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).

11. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

• It is concluded that the applicant meets all of the statutory requirements for

holding a retail beer and wine permit; therefore, the proposed location is a proper one for granting the beer and wine permit subject to the applicant abiding by the conditions set forth below which are intended to alleviate concerns of the Protestant.

ORDER

Based upon the Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED

that the application of Stanley Myers, d/b/a The Bait House for an on-premises beer and wine permit at 7113 S. Island Road, Georgetown, South Carolina be granted, with the following restrictions and conditions:

1. The hours of operation at the location shall continue as they are; however, on Tuesday the sale of beer and wine shall conclude at 6:30 p.m.

2. Myers shall not allow music to be played that can be heard outside the location.

3. Consumption of alcohol is restricted to the inside of the building. Myers is responsible for preventing the consumption of alcohol outside the building.

• Parking for The Bait House is restricted to The Bait House lot. The Mt. Olive

AME Church's parking lot shall not be used for patronizing The Bait House.

IT IS FURTHER ORDERED that a violation of any one of the above conditions is considered a violation against the permit and may result in a fine, suspension, or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue the permit upon payment of the required fees and costs by the applicants.

AND IT IS SO ORDERED.

________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

June 21, 2001

Columbia, South Carolina