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, Larry K. Keller, seeks to renew his on-premise beer and
wine permit for Arrowhead Tackle Shop. 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.
EXHIBITS
Without objection, the Department of Revenue and Taxation's file was made part of the
record. Also introduced were two incident reports (Petitioner's Exhibit 1) and six photographs of the
proposed location area (Petitioner's Exhibit 2).
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 on-premise beer and wine permit for
Arrowhead Tackle Shop on Route 1, St. Stephen, 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. Previous fights had occurred on the premises.
b. Trash is often thrown upon the local roadways by the
individuals who patronize this facility.
c. The individuals who patronize this facility often
urinate in the parking area.
d. There is excessive noise emanating from the proposed
location by both the jukebox and loud talking
occurring in the parking area, and
e. There had been previous violations of the alcohol
beverages law.
7. The Protestant has lived next to this proposed location for many
years. In fact the Protestant, herself, sold this business to the
Applicant. At that time, the Protestant possessed a beer and wine
permit for the location.
8. The Applicant has held a beer and wine permit for at least ten years.
9. The location is in rural Berkeley County on a well-traveled, paved
road. The Protestant lives approximately twenty yards from the
proposed location. There is a commercial establishment directly
across the road from the proposed location.
10. The Applicant has been caught and sanctioned for violating the
Alcohol Beverages Control law. Those sanctions have been served
and are no longer applicable to this proceeding.
11. The Applicant has no bands or live music at his proposed location.
However, the noise emanating from the jukebox may be clearly heard
at the Protestant's residence when the volume control is turned up.
12. There have been instances in the past where the Applicant's patrons
have deposited trash upon the roadways of the local area, but those
instances have been rare.
13. The Applicant's general operating hours are Monday through
Saturday, 6:00 a.m. to 11:00 a.m. However, the Applicant requests
that his permit allow him to sell beer and wine to 12:00 a.m.
14. There have been no recent fistfights at the proposed location, and
possible instances in the past do not render the location unsuitable.
15. The proposed location is not close to any church, school or
playground.
16. The proposed location is suitable with the restrictions set forth below.
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 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 61-9-340 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 Larry K. Keller for an on-premise beer and wine permit
for Arrowhead Tackle Shop on Route 1, St. Stephen, 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. The Applicant and his employees shall prohibit loitering and the
consumption and beer or wine by his patrons/customers in the parking
lot and exterior area of the proposed location. This prohibition shall
be strictly enforced.
2. The Applicant and his employees shall prohibit loud talking and
urinating in the parking lot and exterior area of the proposed location
by his patrons/customers.
3. The Applicant shall not allow excessive noise to emanate from the
proposed location. For the purposes of this restriction, any conviction
for the violation of the county noise ordinance shall be considered
prima facia evidence of a violation of this provision.
4. The Applicant shall ensure that no music emanating from his jukebox
shall be audible outside of the proposed location after 10:00 p.m.
5. The Applicant shall be permitted to operate from 6:00 a.m. to 12:00
a.m.
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 on-premise beer and wine permit upon the payment of the required fee and cost by the Applicant.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
April 20, 1995
Columbia, South Carolina |
