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. 1993) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1993) for a
contested case hearing. The Applicant, Harmon B. Sprott, III, seeks an off-premise beer and wine
permit for the In & Out Express. A hearing was held on March 30, 1995, at the office of
Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The Permit requested by the Applicant 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 court has subject matter jurisdiction of this case.
2. The Applicant seeks an off-premise beer and wine permit for the In &
Out Express at 488 West Boyce Street, Manning, South Carolina.
3. Notice of the time, date, place and subject matter of the hearing was
given to the Applicant, Protestants, and South Carolina Department
of Revenue.
4. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp.
1993) 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.
5. The Applicant is of sufficient moral character to receive a beer and
wine permit.
6. The Protestant complained that the location was unsuitable for the
following reasons:
a. Students pass by the proposed location on the way to
high school, which is approximately three-tenths of a
mile away.
b. The proposed location is within walking distance of
the church and the church has, in the past, had
intoxicated people walk in off the street into the
church.
c. The proposed location has a car wash annexed to the
facility. People who buy the beer or wine from the
premises may simply go over to the car wash area out
of the sight of the manager of the proposed location
and consume the beverage unnoticed. Such action on
behalf of the patrons of the proposed location may
lead to fighting and distribution of beer and wine to
minors.
7. The Applicant's business is located in a commercial area of Manning,
South Carolina. In fact, commercial businesses are on three sides of
his proposed location. The Applicant's business abuts a four-lane road
which is a main thoroughfare for Manning, South Carolina,
Additionally, a two-lane paved street separates the church located 410
feet away from the proposed location.
8. A Food Lion grocery store, located in a shopping mall directly across
the street from both the church and the proposed location, has an off-premise beer and wine permit. That Food Lion is approximately 400
to 500 feet from both the proposed location and the church.
9. 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. 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) sets forth the
requirements for the issuance of an off-premise beer and wine permit.
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 61-9-340 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.
7. 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.
8. 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 Harmon B. Sprott, III for an off-premise beer and wine
permit for the In & Out Express at 488 West Boyce Street, Manning, 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. That the Applicant and his employees shall prohibit loitering and the
consumption of beer or wine by his patrons/customers in the parking
lot and exterior area of the proposed location. This shall specifically
include the car wash located on his premises. The Applicant shall post
both in the In and Out Express and the car wash area that the
consumption of beer and wine on the premises in strictly prohibited.
The Applicant shall further make every effort to have his employees
check the car wash area to ensure that no one is drinking in that area.
This prohibition shall be strictly enforced.
2. The applicant shall have no exterior advertisements or advertisements
which are visible from the outside of his store advertising beer, wine
or any alcoholic beverage.
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 upon the payment of the required fee and cost by the Applicant.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
April 20, 1995
Columbia, South Carolina |