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:
Sandy Smith, d/b/a F&Z Convenience and F&Z Beverage vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Sandy Smith, d/b/a F&Z Convenience and F&Z Beverage

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0119-CC

APPEARANCES:
For the Petitioner: James H. Harrison

For the Protestant: Pro Se

For the Respondent: No Appearance
 

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, et seq. (Supp. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994) for a contested case hearing. The Petitioner, Sandy Smith, seeks an off-premise beer and wine permit and a retail liquor license for the F&Z Beverage. A hearing was held on May 24, 1995, Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The Permit requested by the Petitioner is approved with restrictions.



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 evidence:

1. The Applicant seeks an off-premise beer and wine permit for F&Z Beverage. The Petitioner also seeks a retail liquor license for F&Z Beverage at the same location in Spartanburg , South Carolina.



2. Notice of the time, date, place and subject matter of the hearing was given to the Applicant, Protestants, and South Carolina Department of Revenue.

3. The qualifications set forth in S. C. Code Ann.§§ 61-3-420 and 61-9-320 (Supp. 1994) concerning the residency and age of the Applicant are properly established. Furthermore, the Applicant has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The proposed location is not with 300 feet of any church, school or playground.

5. The Petitioner is of sufficient moral character to receive a beer and wine permit.

6. The Petitioner's business is located in the city of Spartanburg. In the past the previous business at the proposed location has held a beer and wine permit.

7. The protestant argues that the location is unsuitable because the Petitioner allows her fiance, Ray Massey, to work at her business. The protestant further argued that the location is also unsuitable because of the presence of criminal activity in the area.

8. The Petitioner agreed to bar Ray Massey from the premises in order to ensure the location is suitable. She further states that her father will walk the premises every hour to ensure that no criminal activity is occurring. If her business is successful she intends to hire an off-duty police officer to patrol the area.

9. The protestant offered no evidence of specific criminal activity upon the petitioner's proposed location or that the current police protection would be inadequate.

10. The Petitioner's proposed location does not yet structurally comply with S.C. Code Ann. §§ 61-3-1000 and 61-3-1020 (Supp. 1994). The Petitioner states that upon the granting of a permit and license she shall structurally modify the proposed location.



11. The proposed location is suitable for an off-premise beer and wine permit with the restrictions set forth below concerning advertisement and consumption on-premise.



CONCLUSIONS OF LAW


Based upon the above Findings of Fact, I conclude as a matter of law the following:

1. S.C. Code Ann. § 1-23-600 (Supp. 1994) 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. 1994) 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. S.C. Code Ann. § 61-9-320 (Supp. 1994) sets forth the requirements for the issuance of an off-premise beer and wine permit.

4. No new licenses may be granted if the place of business is within 300 feet of any church, school, or playground if the business is situated within a municipality or within 500 feet if the business is outside the municipality. S.C. Code Ann. § 61-3-440 (Supp. 1994).

5. Whether there is adequate and proper police protection for an intended retail liquor store is also a proper consideration. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972).

6. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595, 281 S.E.2d 118, 119 (1981).

7. As the trier of fact, the 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. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705, (Ct. App. 1984).

8. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335, (1985).

9. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that protestant objects to the issuance of the permits is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

10. In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973).

11. S.C. Code Ann. § 61-9-340 (Supp. 1994) 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 Department must issue the permit after payment of the prescribed fee.

12. 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 Comm'm, 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.

13. 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 Sandy Smith for an off-premise beer and wine permit and a retail liquor license at 583 Wofford Street, Spartanburg, 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 are set forth below:



1. Ray Massey will not be allowed upon the premises of the proposed location at any time or in any manner. If he enters the premises the the Petitioner or her employees shall call the police immediately to ensure that this requirement is faithfully instituted.

2. The Petitioner or her employees shall maintain proper lighting around her proposed location to discourage criminal activity.

3. The Petitioner and her employees shall prohibit loitering and the consumption of beer, wine or liquor by the patron/customers in the parking lot area of the proposed location. The Petitioner shall further make every effort to have her employees check the parking lot area on an hourly basis to ensure that no one is loitering upon her premises.

IT IS FURTHER ORDERED that a violation of any of the above restrictions is considered a violation against the permit and license and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an off-premise beer and wine permit and retail liquor license upon the payment of the required fee and cost by the Applicant.

IT IS FURTHER ORDERED that the retail liquor license not be issued until the Petitioner complies with the structural requirements set forth in S.C. Code Ann. §§ 61-3-1000 and 61-3-1020 (Supp. 1994).

AND IT IS SO ORDERED.





_________________________________

Ralph King Anderson, III

Administrative Law Judge

June 30, 1995

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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