South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Stanley Massey, d/b/a Riverview Tavern vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Stanley Massey, d/b/a Riverview Tavern

Respondents:
South Carolina Department of Revenue and Pickens County Sheriff's Department
 
DOCKET NUMBER:
94-ALJ-17-0335-CC

APPEARANCES:
For the Petitioner: Kim R. Varner, Esquire

For the Respondent/South Carolina Department of Revenue and Taxation: None

For the Respondent/Pickens County Sheriff's Office: Michael Barcroft, Esquire
 

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


Brown Bldg.

 

 

 

 

 

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