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 on-premises beer and wine permit for 4965 Dorchester Road, North Charleston, South Carolina. A
hearing was held on September 7, 1994. The issues considered were: (1) the applicant's
eligibility to hold a license/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 restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Applicant seeks an on-premises beer and wine permit for a location at 4965
Dorchester Road, North Charleston, South Carolina, having filed an application with the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"), AI #99809.
(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.
(4) Applicant intends to operate the business as a barbecue restaurant, and plans to serve
beer and wine with a substantial portion of the business dedicated to the preparation and service
of meals.
(5) Applicant does not intend to have a bar or lounge area and does not intend to sell beer
and wine to drive-in customers dining in their cars.
(6) The proposed location seats approximately 180 persons.
(7) The proposed location is across Dorchester Road from Cokesbury United Methodist
Church and Life Christian Daycare Center, approximately 282 feet from the church. Dorchester
Road is a four-lane highway with a turn lane/median in the middle.
(8) In addition to Sunday services, the church has various religious and civic meetings at
the church building throughout the week.
(9) The Daycare Center is operated by the Life Christian Assembly. The worship center
for the congregation is not located at the same location as the Daycare Center.
(10) A BP Oil Station, a business establishment immediately adjacent to the grounds of
Cokesbury United Methodist Church, currently holds an off-premises beer and wine permit.
(11) The intended hours of operation of the proposed business are 6:00 a.m. -10:00 p.m.,
Monday through Saturday.
(12) The area surrounding the proposed location is predominately commercial in nature
with no residential dwellings in close proximity.
(13) Rev. Joe Long, pastor of Cokesbury United Methodist Church, Rev. LaVaughn
Young, pastor of Life Christian Assembly, and Ms. Betsy Smith, director of Life Christian
Daycare Center, testified in protest to the application based upon the proximity of the proposed
location to the church and Daycare Center, insomuch as the application is for on-premises
consumption; however, they were not opposed to the operation of the restaurant itself.
(14) Applicant is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained his principal residence in South Carolina for more than one year.
(15) Applicant has not had a permit/license revoked.
(16) Applicant, who is the manager, is of good moral character.
(17) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen 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 is suitable and proper, in light of the commercial nature of the
area, the nature of the business, and the restrictions on the license contained in this Order.
(9) Applicant meets the statutory requirements for issuance of a beer and wine permit..
ORDER
IT IS THEREFORE ORDERED that the on-premises beer and wine permit application
of Helen G. Brossy, be granted, with the following restrictions and conditions, upon the applicant
signing a written agreement to be filed with DOR to adhere to the stipulations set forth below:
(1) Applicant must not advertise the sale of beer or wine by any means visible
from the outside of the business location.
(2) Applicant must not sell, serve, or allow possession or consumption of beer or
wine on any part of the business location except for the indoor area of the
restaurant.
IT IS FURTHER ORDERED that a violation of any of the above conditions is
considered a violation against the permit and may result in a fine, suspension, or revocation.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
December 8, 1994
Columbia, South Carolina |
