South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Diane W. Byrd, d/b/a Raylrode Daze Festivul, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Diane W. Byrd, d/b/a Raylrode Daze Festivul, Inc.

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0150-CC

APPEARANCES:
Diane W. Byrd, (pro se) Applicant

Rev. Wayne Manning, (pro se) Spokesperson for Protestants
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and

§ 1-23-310, et seq. (Rev. 1986 & Supp. 1994) upon application for an on-premises beer and wine permit for 141 Edward Street, Branchville, South Carolina, by Diane W. Byrd, as President of Raylrode Daze Festivul, Inc., filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on May 17, 1995. The issues considered were: (1) the applicant's eligibility to hold a permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The permit is granted with a condition.

DISCUSSION

This case involves an application for a permanent beer and wine permit for on-premises consumption filed by the organizing committee (an incorporated non-profit corporation known as "Raylrode Daze Festivul, Inc.") of an annual community festival. The permit is intended to be used for beer sales only two days of the year, those days being the last Friday and Saturday of September, when the festival is traditionally held. Rather than apply for a "special event" or temporary permit, which would expire after each festival, the festival organizers seek a permanent permit which requires only biennial renewal. Judging from the numerous letters of protest submitted and from testimony heard at the hearing, there is some division within the

Branchville community over the issue of whether sales should be allowed during the festival at all and particularly whether the organizing committee itself should be directly engaged in beer sales.

This Court will not substitute its judgment for the judgment of the local authorities on the wisdom of allowing beer sales at the Town's annual festival. The Town of Branchville, through local ordinance, could restrict public possession and consumption of beer during the festival if so inclined. Likewise, the board members of the Raylrode Daze Festivul, Inc. could take action or inaction on beer sales in response to community concerns. Whether or not to allow beer sales is a political issue rather than a legal issue to be considered by the local community, not this Court. If the applicant is legally eligible for the beer/wine permit and that the proposed location and business activity are suitable, the permit must be granted. In the present case, the statutory requirements have been met for issuance of a permit.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) The applicant seeks an on-premises beer and wine permit for 141 Edward Street, Branchville, South Carolina, having filed an application with DOR, AI #99740.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, and DOR.

(3) The application was originally submitted by David B. Berry as President of Raylrode Daze Festivul, Inc.; however, Diane W. Byrd was elected to succeed Berry as President of Raylrode Daze Festivul, Inc., subsequent to the filing of the application. Accordingly, Ms. Byrd was substituted as the named applicant by filing the requisite application with DOR on March 13, 1995.

(4) Raylrode Daze Festivul, Inc., is a non-profit, 501(c)(4) corporation incorporated

July 16, 1974, for the purpose of promoting the railroad history of the Town of Branchville. The non-profit corporation sponsors an annual festival one weekend each September in Branchville which includes parades, stage performances, pageants, carnival rides, street dances, skits, live music, contests, and sales of food and beverages.

(5) The Raylrode Daze Festivul has been in existence since 1969.

(6) Beer has been sold at the festival for at least twenty years.

(7) Many people filed written protests to the issuance of the permit applied for; however, the only protestants present at the hearing were Rev. Wayne Manning, Pastor of Branchville Christian Church and Rev. Steve Thompson, Youth Minister of Branchville Christian Church.

(8) Reverends Manning and Thompson expressed concerns that the issuance of the permit would result in excessive drinking, public drunkenness, and related problems, especially during the evening hours on Friday and Saturday of the festival.

(9) Reverend Manning also voiced opposition to the festival organizing committee itself (Raylrode Daze Festivul, Inc.) being the permittee, as the festival is a community sponsored and family oriented event.

(10) During the festival, in addition to Branchville police, extra law enforcement personnel are on duty in Branchville, including officers of the Highway Patrol, SLED, and Orangeburg County Sheriff's Department.

(11) The proposed location is an unimproved lot owned by Raylrode Daze Festivul, Inc.

(12) The proposed location is within the town limits of Branchville.

(13) Raylrode Daze Festivul, Inc., plans to construct a permanent structure at the proposed location and to rope off the proposed location into a "beer garden" to confine patrons, trash, and drinking to the proposed location itself.

(14) Applicant intends to sell beer at the proposed location only during the Friday and Saturday of the annual festival, with no sales occurring during the remainder of the year.

(15) In the past, the Town and Festival have allowed outside vendors to sell beer from beer wagons in the streets, with the vendors keeping all proceeds and the Festival realizing no profit. That practice will no longer be allowed for future festivals.

(16) Several business which hold off-premises beer and wine permits in Branchville, three of which are within 750 feet of the proposed location, sell beer during the festival, offering beer by the individual can with a plastic cup from outside booths on their licensed locations.

(17) There are no schools, playground, or churches located in close proximity of the proposed location.

(18) The applicant is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained her principal residence in South Carolina for more than thirty days.

(19) The applicant has not had a permit/license revoked in the last two years.

(20) The applicant is of good moral character.

(21) Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.

(22) Beer sales under the direct control and supervision of the festival organizing committee (Raylrode Daze Festivul, Inc.) itself provides a better means of regulation and management of beer sales during the festival than beer sales by independent vendors.

CONCLUSIONS OF LAW

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

(1) S.C. Code Ann. § 61-1-55 (Supp. 1994) provides that the South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

(2) S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.

(3) As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a license/permit to sell liquor, beer, and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d 705 (S.C. App. 1984).

(4) The determination of suitability of a location is not necessarily a function solely 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 to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

(5) Provided that an adequate permanent structure is erected, the proposed location is suitable and proper, in light of the commercial nature of the area, the existence of other licensed locations in the vicinity, and the absence of any evidence that the location is unsuitable.

(6) The proposed business activity is suitable and proper, given the past history of beer sales during the festival and the level of supervision and control of beer sales that would result from a beer garden arrangement managed by the festival organizers.

(7) Applicant meets the statutory requirements for issuance of a beer and wine permit.

(8) 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.

(9) Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

(10) Applicant meets the statutory requirements for issuance of a beer and wine permit.

ORDER

IT IS THEREFORE ORDERED that the on-premises beer and wine permit application be granted, with the following condition:



Prior to issuance, Applicant must construct and erect, in accordance

with state and local building and health regulations, a permanent

structure on the proposed location suitable for service of beer and

wine for on-premises consumption.





_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

May ___, 1995

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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