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 a location at the intersection of Rte. 74 and Highway 321, two
miles south of Norway, South Carolina, in Orangeburg County. A hearing was held on
March 29, 1995. The issues to be 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. At the outset of the hearing, Applicant and Protestant stipulated as to
the facts of the case and agreed to a restriction to the permit provided Protestant would withdraw
his protest. Accordingly, 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 the intersection
of Rte. 74 and Highway 321, two miles south of Norway, South Carolina, in Orangeburg County,
having filed an application with the South Carolina Department of Revenue and Taxation
(hereinafter referred to as "DOR"), AI #99395.
(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 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.
(5) Applicant has not had a permit/license revoked.
(6) Applicant, who is the manager, is of good moral character.
(7) 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.
(8) Applicant's brother, Vance Polite, previously held a beer and wine permit which has
been revoked.
(9) Orangeburg County Sheriff's Department is concerned that Vance Polite may have an
active role in the management and operation of the proposed location.
(10) Captain William Martin of the Orangeburg County Sheriff's Department, the sole
protestant, agreed to remove his protest from Applicant's application if Applicant would stipulate
that Vance Polite will not be allowed on the business premises during the hours of operation of
the business.
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) 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).
(4) 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).
(5) 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.
(6) 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).
(7) The record is absent of any evidence to suggest the proposed location is not suitable
and proper.
(8) 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 Stanley Polite, 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:
Applicant's brother, Vance Polite, is prohibited from being at the
licensed location at any time during operating hours. Applicant is
responsible for enforcement of this 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
March 30, 1995
Columbia, South Carolina |
