ORDERS:
ORDER AND DECISION
STATEMENT OF CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann.
§§61-1-55, et seq. (Supp. 1993) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1993) for
a hearing pursuant to the application of Katie M. Mosley, d/b/a Pop's Place(Applicant). The
Applicant seeks an on-premise beer and wine permit (101661) for 1366 Rosewood Drive, Columbia,
South Carolina.
A hearing was held on March 23, 1995, at the office of Administrative Law Judge Division,
1205 Pendleton Street, Columbia, South Carolina. Notice of the time, date and place of the hearing
was timely given to all parties including the protestants. The beer and wine permit requested by the
Applicant is approved with stipulations.
EXHIBITS
Without objection the Department of Revenue and Taxation's file was made a part of the
record.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the parties or protestants, I
make the following findings of fact by a preponderance of the evidence:
1. The court has subject matter jurisdiction of this contested case.
2. Notice of the time, date, place, and subject matter of the hearing was given to the
Applicant, protestants and the South Carolina Department of Revenue.
4. The Applicant seeks an on-premise beer and wine permit for 1366 Rosewood Drive,
Columbia, South Carolina.
5. The Applicant is a legal resident of the United States and has been a legal resident and
maintained her principal place of abode in South Carolina for at least thirty (30) days.
6. The Applicant has not had a permit or license revoked within two years before the date
of the application.
7. The Applicant is twenty-one years of age or older.
8. Notice of the application was lawfully posted at the location and published in a
newspaper of general circulation for the required statutory period. See S.C. Code Ann. §§61-9-320(7) and (8) (Supp. 1993).
9. The proposed location is situated in an area zoned commercial by Richland County.
There are no playgrounds or schools in close proximity to the location. However, there are
residences located nearby. Furthermore, a church is located approximately 300 feet from the site of
the proposed location. However, separating the church from the site is a well traveled, four lane
thoroughfare in Columbia. Additionally, Andy's, a club with an on-premise beer and wine permit is
located 20 feet to the West of the proposed site. A Pantry, with an off-premise beer and wine permit,
is located 600 feet to the East of the proposed site. Finally, the proposed site is completely
surrounded by businesses.
10. At the hearing the Applicant agreed to be bound by the restriction that her business
operate only Monday through Saturday between the hours of 9:00 a.m. and 7:00 p.m.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law the following:
1. Section 1-23-600 S.C. Code Ann. (Supp. 1993) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. Section 61-1-55 S.C. Code Ann. (Supp. 1993) grants to the Administrative Law Judge
Division the powers, duties and responsibilities as hearing officer in protested and contested matters
governing alcoholic beverages, beer and wine.
3. Section 61-9-320 S.C. Code Ann. (Supp. 1993) and §§61-3-440 et.seq. (Supp. 1993)
sets forth the requirements for the issuance of an on-premise beer and wine permit and a sale and
consumption license.
4. As trier of fact, an Administrative Law Judge is authorized to determine the fitness
or suitability of the proposed location of an applicant for a permit or license to sell alcohol, beer or
wine using broad but not unbridled discretion. 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 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 located. Kearney v. Allen, 287
S.C. 324, 338 S.E. 2d 335 (1985).
6. Section 61-3-425 S.C. Code Ann. (Supp. 1993) requires an applicant seeking a license
to present to the Department of Revenue and Taxation a signed statement from both the Department
and the Internal Revenue Service showing the applicant doesn't owe state or federal taxes, penalties
or interest.
7. Section 61-9-340 S.C. Code (Supp. 1993) provides that upon determination that the
applicant meets the criteria for the issuance of a permit or license, and has not misstated or concealed
a fact in the application, the South Carolina Department of Revenue and Taxation must issue the
permit after payment of the prescribed fee.
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 state's police power to be used
and enjoyed only so long as the restrictions and conditions governing them are complied with. The
Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise
place restrictions or conditions on the permit or license. See, Feldman v. S.C. Tax Commission, 203
S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 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.
9. I conclude that the applicant meets all the statutory requirements for holding a beer
and wine permit at the proposed location. Accordingly, I conclude that the proposed location is a
proper one for granting the above permit with the following restrictions in the form of a written
stipulation.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Katie M. Mosley for an on-premise beer and wine permit
at 1366 Rosewood Drive, Columbia, South Carolina be granted upon the Applicant signing a written
agreement with the South Carolina Department of Revenue and Taxation to adhere to the stipulations
which she agreed to that are set forth below:
1. That the Applicant shall operate her business only Monday through Saturday between
the hours of 9:00 a.m. to 7:00 p.m.
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.
AND 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.
___________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
March 30, 1995 |
