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 |