ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and
S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an off-premises beer and wine permit for 1425 Rocky River Road, Lancaster, South Carolina, in
Buford's Crossroads community. A hearing was held on September 20, 1994. The issues
considered were: (1) the applicant's eligibility to hold a permit; (2) the suitability of the proposed
business location; and (3) the nature of the proposed business activity. The application for a beer
and wine permit is hereby granted, with restriction.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Applicant seeks an off-premises beer and wine permit for a location at 1425 Rocky
River Road, Lancaster, South Carolina, having filed an application with the South Carolina
Department of Revenue and Taxation (hereinafter referred to as "DOR"), AI #98188, on
June 22, 1994.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) The DOR file was made a part of this record by reference by consent of the parties
and protestants.
(5) The proposed location is located in a newly built brick and concrete block structure
owned by Applicant which also houses a pool hall, on the west side of SC Highway 522,
approximately 200 feet to 300 feet from the intersection with SC Highway 9, in an area of
Lancaster County known as Buford's Crossroads.
(6) Applicant has an on-premises beer and wine permit application pending for a separate
pool hall business at the same location.
(7) Buford Express Mart and Golden Quick Mart and Tanning Salon, located on
property adjacent to the proposed location on the northwest corner of the intersection of Buford's
Crossroads, are currently licensed to sell beer and wine for off-premises consumption with the
restriction that beer and wine sales must cease no later than 11:00 p.m. each day.
(8) Applicant is the owner of the property where Buford Express Mart and Golden
Quick Mart and Tanning Salon are located but leases the property to private business operators.
(9) Applicant represented to the Court that the above permits are up for renewal and the
permittees will seek to have the 11:00 p.m. sales restriction removed from the permits.
(10) Applicant holds or has held approximately twelve (12) alcoholic beverage
permits/licenses at other locations since 1978, without violation or arrest.
(11) Applicant intends to operate the proposed location twenty-four hours a day as a
convenience store.
(12) The area surrounding the proposed location is a sparsely populated rural community,
with a mix of commercial and residential dwellings and undeveloped and agricultural property.
(13) There are three (3) schools within one (1) mile of the proposed location, but none in
extremely close proximity.
(14) Mr. Bill Howze, Mrs. Elizabeth Howze, and Rev. James Dyar, Pastor of Antioch
Baptist Church in Lancaster, testifed in protest to the application, and a letter was submitted
without objection by Ms. Barbara Howze protesting the application.
(15) The protests are based upon: the proximity of the proposed location to residences,
schools, and a child care facility; traffic concerns; safety of elderly and disabled female residents
living in close proximity to the proposed location; noise concerns; and the number of licensed
locations in the area in relation to the number of residents in the area.
(16) The Howzes live on Rocky River Road (S.C. Highway 522), at the southwest corner
of Buford's Crossroads.
(17) There are only seven or eight homes within one-half mile of the proposed location.
(18) Robert J. Cook, an acoustical consultant from Charlotte, North Carolina, performed
noise tests at Buford's Crossroads over a six (6) hour period on the night of September 10, 1994.
(19) The results of Mr. Cook's tests indicate the highest levels of noise are attributable to
traffic, particularly truck traffic on Highway 9. The noise attributed to the proposed location,
where the pool hall is currently operating, was significantly lower than the traffic noise.
(20) Applicant is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained her principal residence in South Carolina for more than one (1) year.
(21) Applicant has not had a permit/license revoked.
(22) Applicant is of good moral character.
(23) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three (3) consecutive weeks and was posted at the proposed location
for fifteen (15) days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1993) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) A permit or license must not be issued if an applicant does not meet the standards of
S.C. Code Ann. § 61-3-730 (Supp. 1993).
(4) As the 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, 316 S.E.2d
705 (S.C. App. 1984).
(5) 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).
(6) 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to
permits, provides:
Any stipulation and/or agreement which is voluntarily entered
into by an applicant in writing for a beer and wine permit between
the applicant and the South Carolina Alcoholic Beverage Control
Commission, if accepted by the Commission, will be incorporated
into the basic requirements for the enjoyment and privilege of
obtaining and retaining the beer and wine permit and which
shall have the same effect as any and all laws and any and all
other regulations pertaining to the effective administration of
beer and wine permittees.
In the event that evidence is presented to this Commission
that any part of the stipulation or agreement is or has been
knowingly broken by the permittee will be a violation against
the permit and shall constitute sufficient grounds to suspend
or revoke said beer and wine permit.
(7) Permits and licenses issued by the State for the 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).
(8) The proposed location and business activity are suitable and proper because of the
commercial nature of the surrounding area.
(9) Applicant meets the statutory requirements for issuance of a beer and wine permit..
DISCUSSION
While particular aspects of the application before this Court raise curiosity and cause
concern, Applicant is entitled to have the permit granted because she meets the statutory
requirements specified in the Code. Had this been an application for a retail liquor license and the
surrounding businesses held similar licenses, I would find the community adequately served and
deny the application for fear of oversaturation, pursuant to S.C. Code Ann. § 61-3-480 (1976);
however, the Code does not contain a parallel statute for beer and wine permits.
I am mindful that Applicant has a pending application for an on-premises beer and wine
permit for the pool hall which adjoins this proposed location and that the nearby permittees are in
the process of attempting to have 11:00 p.m. closing time restrictions removed from their permits.
In no way is this Order intended to be used to support the pending applications or renewals in the
Buford's Crossroads community. This decision to grant Applicant's permit is based solely on the
facts presented that relate directly to the proposed location, the applicant's eligibility, and the
nature of the proposed business activity. This Court restrained itself from considering matters,
such as the pending applications and renewals, outside of its immediate scope of inquiry. Pending
issues must be decided in their own context and on their own merits when properly presented for
adjudication.
ORDER
IT IS THEREFORE ORDERED that the off-premises beer and wine permit application
of Cynthia T. McDonald be granted, with the following restriction and condition, upon the
applicant signing a written agreement to be filed with DOR to adhere to the stipulation set forth
below:
Cynthia T. McDonald and her employees shall prohibit
loitering and the consumption of beer or wine in the parking
lot of the proposed location and strictly enforce the prohibition.
IT IS FURTHER ORDERED that a violation of the above condition is considered a
violation against the permit and may result in a fine, suspension, or revocation.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 5, 1994
Columbia, South Carolina |
