ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge
Division pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1993) and
S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp. 1993) for
a hearing pursuant to the application of Stanley Massey, d/b/a
Riverview Tavern, ("applicant") for an on-premises beer and wine
permit at 1307 Old Easley Highway, Easley, Pickens County, South
Carolina ("location").
A hearing was originally scheduled for December 12, 1994
at Greenville Technical College, however, due to time constraints,
Petitioner's counsel, Kim R. Varner, requested a continuance and
same was granted. A hearing was thereafter rescheduled and heard
on December 20, 1994 at the Anderson County Courthouse. Notice of
the date, time, place and nature of the hearing was timely given to
all parties as to both locations and scheduling, including the
protestants who were present for the originally scheduled hearing.
The application was protested by Sheriff David Stone of
Pickens County. The Respondent South Carolina Department of
Revenue and Taxation ("Department") placed no objection to the
issuance of the permit and was not represented at the hearing.
Upon Motion made, without objection, the Pickens County Sheriff's
Office was made a party to the action as a correspondent. Sheriff
David Stone and Officers Duncan and Cowan were present on behalf of
the Pickens County Sheriff's Office.
The application request by the Petitioner is granted with
restrictions.
EXHIBITS
Without objection, copies of those portions of the
Department's file set forth hereafter were made a part of the
record:
1. application by petitioner for beer and wine permit;
2. publication notices in The Greenville News for the
permit;
3. surety bond;
4. sketch of the proposed location;
5. investigative reports by SLED on the Petitioner and his wife;
6. protest by Sheriff David Stone.
At the hearing, the Respondent placed into the record as
evidence, without objection, exhibit #1 consisting of ten (10)
photographs of the location and surrounding area; and exhibit #2
consisting of seven (7) photographs showing alleged illegal
moonshine and storage at the location taken from the property and
evidence file of Pickens County Sheriff's Department.
SUMMARY OF THE EVIDENCE
Petitioner/applicant testified that all information
contained in his permit application was correct, that he is fifty-three (53) years of age, has lived in Greenville County, South
Carolina for all of his life and within three (3) blocks of the
location for the last twenty (20) years. He further testified that
he owns and operates with his wife, Doris Massey, a mobile home
transport business. He further stated that his wife had a permit
at the same location for approximately seven (7) years and
voluntarily surrendered the license in approximately September of
1993.
Concerning the location itself, he stated that it does
have one (1) poker machine and a juke box therein, however, he is
unsure of the status of the poker machine due to the recent vote in
Pickens County rejecting pay-offs. The applicant testified that
the building is approximately 20' x 40' in size and has separate
storage facilities with a microwave oven and facilities for serving
light food and snacks. Specifically, he stated that the location
does not have a restaurant-type kitchen and has limited seating
capacity.
The applicant stated that the location is in a rural
setting on the Pickens County/Greenville County line and there are
no subdivisions, churches, playgrounds or schools or other
businesses located within sight or near the location. He testified
that the traffic on the road was very light except for one night
weekly during the summer months when the Greenville-Pickens
Speedway is in operation. The applicant testified that the
Speedway is approximately one mile away.
The applicant testified that his wife had previously held
the permit at the location and voluntarily surrendered it after an
incident at the location a little more than one year ago.
Specifically, he stated that a shooting had occurred in the parking
lot of the location and a death had resulted. He stated that no
criminal charges were subsequently brought and that neither he nor
his wife were present at the time of the incident. He stated there
was also a small amount of illegal moonshine at the location on
that occasion; however, he asserted he had no knowledge of the
illegal liquor and that the problem had occurred due to the fact
that the bartender on duty was irresponsible. He stated that no
charges were brought against either him or his wife nor was her
permit suspended. He testified that prior to the incident he had
been looking for a replacement bartender and there were safeguards
in place now to prevent any such reoccurrence. Specifically, he
testified that either he or his wife would be present at all times
if the permit is granted.
Officer Duncan of the Pickens County Sheriff's Department
testified he was familiar with the location and felt that it was
too remote for the Sheriff's Office to provide adequate law
enforcement coverage. Officer Duncan did admit that the location
had been a bar/lounge for approximately 40-50 years, was personally
acquainted with the applicant and his wife and had no problems with
them personally nor with their moral character. He further
testified that previous problems at the location were directly
related to action and behavior of a former bartender and that he
had made the applicant aware of those concerns. Also, he expressed
concern that neither the applicant nor his wife were present,
except on week-ends, when it was previously open. Officer Duncan
testified he had seen the applicant intoxicated at the bar on some
previous occasions which caused him concern.
Officer Cowan of the Pickens County Sheriff's Department
testified that he was in charge of safekeeping of property and
evidence for the Department and presented photographs taken at the
location after the shooting incident approximately one year ago.
He identified a photograph as being that of illegal moonshine and
testified that the shooting had occurred in the parking lot and
involved the bartender's gun, although the bartender was not
directly involved.
David Stone, sheriff of Pickens County for the last
twenty-six (26) years, testified he opposed the issuance of a
permit due to the location of the premises and the lack of adequate
staff to provide efficient law enforcement. He stated the area was
located near what he believed to be a rough section in Greenville
County and that he was concerned with the response time concerning
any future incidences.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following
findings:
1. This Division has personal and subject matter jurisdiction.
2. The applicant is seeking an on premises beer and wine permit for a bar located at 1307 Old Easley Highway, Easley, South Carolina.
3. The applicant is of good moral character.
4. The applicant has been a legal resident of South
Carolina for over thirty (30) days and has main-
tained his principal place of abode in South
Carolina for over thirty (30) days.
5. Neither the applicant nor his wife have ever had a beer and wine permit or mini-bottle license revoked.
6. Notice of the application has appeared at least
once a week for three consecutive weeks in The
Greenville News, a newspaper of general circulation
in the local area where the applicant proposes to
engage in business.
7. Notice of the application has been given by dis-
playing a sign for a minimum of fifteen (15) days at
the site of the proposed location.
8. The applicant intends to operate a tavern and/or
lounge at the location.
9. The applicant is over twenty-one (21) years of age.
10. There are no schools, playgrounds or churches in
close proximity to the location.
11. The proposed location is not within any municipal
boundaries but in a relatively rural area.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as
a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1993) grants
jurisdiction to the Administrative Law Judge Division to hear
contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1993) 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.
3. S.C. Code Ann. § 61-9-320 (Supp. 1993) 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 and 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.
4. 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.
The department may consider, among other factors, as
indications of unsuitable location the proximity to
residences, schools, playgrounds and churches.
7. 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.
8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.
The applicant meets all the statutory requirements set forth
above and has made an adequate showing on each of the above stated
grounds for issuance of the permit.
4. 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 181 (1981).
5. 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, 316 S.E. 2d 705 (S.C. App. 1984).
6. S.C. Code Ann. §61-9-340 (Supp. 1993) states that upon a
determination that an applicant meets the criteria set forth and
has not misstated or concealed a fact in the application, the S.C.
Department of Revenue and Taxation must issue the permit after
payment of the prescribed fee.
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. 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).
9. S.C. Code Ann § 61-3-440 (Supp. 1993) 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.
10. 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.,
198 S.E. 2d 801 (1973). There was not sufficient testimony nor
evidence presented by the officers of the Pickens County Sheriff's
Office to show that the location is unsuitable, is not a fit
location or that it would create additional traffic congestion
sufficient to create stress in terms of the residents' safety. The
restrictions as set forth hereafter should remedy the concerns of
the Pickens County Sheriff's Office.
11. It is concluded that the applicant meets all of the
statutory requirements for holding a retail beer and wine permit
and accordingly, I conclude that the proposed location is a proper
one for granting the beer and wine permit.
ORDER
Based upon the above Findings of Fact and Conclusions of
Law, it is hereby:
ORDERED that the application of Stanley Massey for an on-premises beer and wine permit at 1307 Old Easley Highway, Easley,
Pickens County, South Carolina 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. No alcoholic beverages will be sold outside the premises
which prohibition specifically includes the picnic area near the
river;
2. Neither Petitioner nor his wife, Doris J. Massey, will
be allowed to consume alcoholic beverages while at the business
location;
3. Either the Petitioner or his wife will be present at
the location at all times while the location is being operated;
4. There will be no gun or firearm on the premises;
5. There will be no moonshine or illegal liquors on the
premises;
6. The business hours will be from 4:00 p.m. until 9:00 p.m.
Monday through Thursday and from 4:00 p.m. until 12:00 p.m. on
Fridays and Saturdays;
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 and
Taxation issue the permit upon payment of the required fees and
costs by the applicant.
AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
February 2, 1995 |