SC Administrative Law Court Decisions

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, Ken L. Willis, Fripp Island Excursions, seeks an on-premise beer and wine permit for Paradise Pier at 2809 Sea Island Parkway, Hunting Island, South Carolina. A hearing was held on April 27, 1995, at the office of Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The Permit requested by the Applicant is approved with the following restrictions.

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 Paradise Pier at 2809 Sea Island Parkway in Hunting Island, 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 Applicant operates a marina approximately two miles from the proposed location. That marina's operation will be very similar to the Paradise Pier in that the marina rents skiffs, wave runners and kayaks. The marina also has an off-premise beer and wine permit.

7. The Applicant currently holds three beer and wine permits. Furthermore, the previous owner of the pier had a beer and wine permit from the years 1981 to 1993.

8. The Protestant objects to the Applicant receiving a beer and wine permit because the Applicant will be renting wave runners to be used in the inlet.

9. The Applicant intends to rent wave runners to individuals. These wave runners are similar to jet skis but they operate at slower speeds and in a safer manner. The Applicant will only rent to individuals who have a valid driver's license and who will read and sign the Lease Agreement.

10. The Lease Agreement for the wave runners will have the following requirements:

(a) The Lessee of the wave runner shall stay clear of all docks and shall create no wake in front of a dock.

(b) The wave runner operator shall stay out of all canals, cannot go under the Fripp Island Bridge or into either Storey or Harbor Rivers. In other words, the Lessee must remain in the inlet area within the parameters of the buoys set forth by the Applicant.

(c) The Lessee shall stay 25 feet from any other water craft.

(d) The Lessee shall stay 100 feet from land on either side of the inlet area.

(e) The Lessee shall obey all boating regulations and all boating safety tips set forth and attached to the lease agreement.

11. The lease of the wave runners shall be subject to various restrictions. The Lessee will not assume operation of the wave runner directly from the pier. The Lessee will be transported by a shuttle boat to a deck boat which shall be located on the opposite side of the inlet area. No beer, wine, or alcohol shall be allowed either on the shuttle boat or the deck boat. The employees shall, also, be trained not to lease a wave runner to any individual who appears intoxicated. Furthermore the operator of the deck boat shall pursue with a "chase boat" any individual violating the above requirements. If an individual is caught violating the requirements set forth in the Agreement, that individual shall immediately relinquish his right to operate the wave runner and shall forfeit his deposit.

12. The Applicant stipulates to the requirements set forth in paragraphs 9, 10, and 11 being restrictions upon his beer and wine permit.

13. The Applicant's proposed location is not near any church, school or playground.

14. The Applicant meets the statutory requirements for holding a beer and wine permit. Accordingly, I conclude the proposed location is suitable for a beer and wine permit with the following restrictions in the form of a written stipulation.

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.

ORDERED that the application of Ken L. Willis, for an off-premise beer and wine permit for Paradise Pier at 2809 Sea Island Parkway, Hunting Island, 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 shall rent only to individuals who have a valid driver's license and who sign a Lease Agreement which sets forth the following requirements:

(a) The Lessee of the wave runner shall stay clear of all docks and shall create no wake in front of a dock.

(b) The wave runner operator shall stay out of all canals, cannot go under the Fripp Island Bridge or into either Storey or Harbor Rivers. In other words, the Lessee must remain in the inlet area within the parameters of the buoys set forth by the Applicant.

(c) The Lessee shall stay 25 feet from any other water craft.

(d) The Lessee shall stay 100 feet from land on either side of the inlet area.

(e) The Lessee shall obey all boating regulations and all boating safety tips set forth and attached to the lease sagreement. These requirements shall be strictly enforced by the Applicant.

2. The actual operation of a wave runner shall be assumed only after the Lessee is transported by shuttle boat from the Paradise Pier to a deck boat located on the opposite side of the inlet area. No beer, wine or alcohol shall be allowed on the shuttle boat or the deck boat. Additionally, the employee shall be required not to lease these wave runners to any individual who appear intoxicated.

3. Any individual violating the requirements set forth here or in the above paragraph shall be apprehended by the Applicant or his employees and shall immediately relinquish his right to operate a wave runner.

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.

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Ralph King Anderson, III

Administrative Law Judge

May 5, 1995

Columbia, South Carolina