SC Administrative Law Court Decisions

This matter comes before the Division pursuant to South Carolina Code Ann. § 61-1-55 (Supp. 1994) and S.C. Code Ann. § 1-23-310, et seq. (1986 and Supp. 1994) for a contested case hearing. The Petitioner, Lawrence A. Hatch d/b/a Volume Services, Inc. ("Petitioner") originally sought ten special permits (AI's 102690, 102691, 102692, 102693, 102694, 102695, 102696, 102697, 102698, and 102699) under South Carolina Code Ann. § 61-9-360 (Supp. 1994), permitting the sale of beer and wine at fairs and special functions, for two preseason and eight regular season games of the Carolina Panthers to be played at Clemson Memorial Stadium ("Stadium"), on the campus of Clemson University in Pickens County, South Carolina.

After timely notice to the parties, a hearing into this matter was held on May 8, 1995, at 222 McDaniel Avenue, Pickens, South Carolina. Clemson United Methodist Church ("Intervenor") moved to intervene as a party before the hearing and the motion was granted, without objection, by previous order of the Administrative Law Judge Division ("Division"), dated April 27, 1995. The issues considered at the hearing were: (1) the Petitioner's eligibility to hold a beer and wine permit, and (2) the suitability of the proposed licensed location. The two special permits requested for the two preseason games scheduled for Saturday, August 12 and Saturday, August 26, 1995 (AI's 102690 and 102691) were granted in an order dated June 26, 1995. The eight special permits for the sale of beer and wine requested for the Sunday regular season games commencing on September 17, 1995 (AI's 102692, 102693, 102694, 102695, 102696, 102697, 102698, and 102699) are denied for the reasons set forth below.

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, in addition to post-trial briefs submitted by both the Petitioner and the Intervenor, and passed upon their credibility taking into consideration the burden of persuasion of the Petitioner and Intervenor , the Court makes the following findings of fact by a preponderance of the evidence:

1. The Petitioner seeks special beer and wine permits pursuant to S.C. Code Ann. § 61-9-360 (Supp. 1994) for eight Sunday regular season Carolina Panthers football games commencing in September, 1995 (AI's 102692, 102693, 102694, 102695, 102696, 102697, 102698, and 102699) at the concession stands of Clemson Memorial Stadium, Pickens County, South Carolina.

2. The file of the South Carolina Department of Revenue and Taxation ("Department") was made part of the record by reference with consent of the parties.

3. Notice of the time, date, place, and subject matter of the hearing was given to the Petitioner, Intervenor and the Department.

4. The Petitioner is a legal resident of the United States and has been a legal resident and maintained his principal place of abode in South Carolina for at least thirty days.

5. The Petitioner has not had a permit or license revoked within two years before the date of the application. In fact, the Petitioner has never been charged with any violations of the S.C. Alcoholic Beverage Control Act or ever had any license or permit revoked by the Department.

6. The Petitioner is twenty-one years of age or older.

7. Notice of the application was lawfully posted at the location and published in a newspaper of general circulation for the required statutory period under S.C. Code Ann. §§ 61-9-320(7) and (8) (Supp. 1994).

8. The good moral character of the Petitioner was stipulated to by the parties.

9. The Intervenor contends that the proposed location is unsuitable primarily for the following reasons:

A. The granting of the permits would encourage the use of alcohol by Clemson University students;

B. Granting the permits will create problems for law enforcement officials enforcing traffic laws in the surrounding area, especially the enforcement of DUI laws;

C. Granting the permits would cause traffic difficulties in and around the Clemson area;

D. Granting the permits would thwart the use of the Clemson University campus for other concurrent events; and

E. The Stadium is too close in proximity to several churches and their adjoining playgrounds.

10. The proposed location is a multi-purpose, on-campus athletic stadium which seats in excess of 80,000 people for athletic and other special events.

11. The Petitioner holds numerous permits from the Department for the sale of beer and wine and alcoholic beverages in various locations in the State of South Carolina. These permits include, but are not limited to, the following locations: the North Charleston Coliseum, the Charleston River Dogs minor league baseball facility, the Capital City Bombers minor league baseball facility, the Florence Civic and Convention Center, and the Palmetto Exposition Center. The Petitioner also formerly held a permit at the University of South Carolina Williams-Brice Stadium. The Petitioner has also applied for and received at least thirty temporary or special event permits for sales of beer and wine. Furthermore, the Petitioner operates numerous other concession stands throughout the country at various sports facilities in which alcoholic beverages are sold.

12. The Petitioner previously held a special beer and wine permit issued for the Stadium under S.C. Code Ann. § 61-9-360 (Supp. 1994). That special permit was issued by the Department for a Pink Floyd concert held at the Stadium in May, 1994. The Clemson University Police Department experienced no difficulties with the Petitioner's provision of beer and wine sold at the Stadium under that permit.

13. The Petitioner presented to Clemson University officials and the Clemson University Police Department a security and alcoholic beverage sales management plan to be implemented by the Petitioner at each Carolina Panthers game at the Stadium. The Petitioner's plan addressed all the concerns held by Clemson University and the Clemson University Police Department regarding the service of beer and wine at the Stadium during the Carolina Panthers games.

14. The Petitioner will train each of its employees in the appropriate standards of practice in serving alcoholic beverages and intervention procedures to be used by employees to ensure the responsible use of alcohol by patrons at each game at the Stadium. The Petitioner will provide this training to its employees, which number in excess of 900 persons, by implementing a comprehensive alcohol management training and certification program known as T.I.P.S. (Training for Intervention Procedures by Servers of Alcohol). This nationally-recognized program trains employees to lawfully and safely serve alcoholic beverages at large public events. To be certified under the T.I.P.S. program, employees must review all program materials and take a graded examination testing their knowledge of the T.I.P.S. procedures. Upon successful completion of the examination, certified employees sign a memorandum of understanding that if they violate any of the policies and procedures pertaining to the sale of alcoholic beverages, their employment will be terminated. In addition, the Petitioner will develop site-specific policies and procedures for beer and wine sales at the Stadium in coordination with the Clemson University Police Department and other appropriate law enforcement agencies. These policies and procedures for beer and wine sales at the Stadium will be contained in a site-specific video that will be reviewed by all employees prior to each game.

15. The Petitioner's utilization of the T.I.P.S. program is not required by the laws of this State, by Clemson University, or by the National Football League but is being implemented by the Petitioner to ensure compliance with South Carolina laws regarding the sale and consumption of alcoholic beverages.

16. The Petitioner agreed to further provide the following to insure the suitability of the location:

A. The Petitioner will not sell beer or wine in any Clemson student seating section at the Stadium if such a student seating section is designated by Clemson University and the Carolina Panthers.

B. Each customer who appears to be under the age of thirty will be required to provide proof of age before purchasing beer or wine. Signs reading "I.D.s of Anyone Appearing Under the Age of 30 Will Be Checked" shall be prominently displayed at each beer concession. The only I.D.s that will be accepted are a valid South Carolina driver's license, a federal military I.D., or other valid identification that contains a photograph. If a false I.D. or an invalid I.D. is presented, the Petitioner's employees are instructed to retain the I.D. and to notify the stand manager at that particular concession to remove the customer and to notify security to issue a citation to the customer for attempting to purchase beer with a false or invalid I.D. In addition, the Petitioner provides each employee with a book demonstrating proper driver's licenses from other states and identifying sample false I.D.s. This book cross-references to the training video presented to each employee.

C. No customer will be allowed to purchase more than two alcoholic beverages at any one time. If the employee determines that a customer appears to be intoxicated, the employee will be trained to inform the customer that the employee legally cannot serve the customer any more beer. The employee will be trained to then call security. If the individual appearing to be intoxicated leaves the premises prior to security's arrival, a description is to be given to the security personnel so that they can locate that individual. If a customer appears to be purchasing a "large" quantity of beer, the employee will be trained to ask the customer where the other beer is going. If the employee sees a customer hand off beer to a minor, the employee will be trained to call security. Each concession stand location is to be equipped with a telephone and/or two-way radio to maintain constant contact with security personnel.

D. All beer and wine sales will cease by the end of the third quarter of each game. If the football game commences at night, beer and wine sales will cease by the earlier of either the end of the third quarter of the game or by midnight.

E. Beer and wine sales will commence no earlier than two hours prior to commencement of the football game.

F. A designated driver program will be established by the Petitioner for the Carolina Panthers games. Under this program, voluntary participants receive two free non-alcoholic beverages in exchange for a pledge not to consume alcohol for a set period of time before, during, or after attendance at the game. The pledge includes an agreement by the participant to be evicted from the Stadium if this pledge is violated.

G. The Petitioner will terminate beer and wine sales at any point during a game if, in the judgment of the Clemson University Law Enforcement Division, the Carolina Panthers management, or upon the Petitioner's own judgment, concerns develop with control of beer and wine sales and consumption at that game.

H. In addition to the Clemson University Police Department officers, Clemson City Police Department officers, Pickens County Sheriff's Department deputies, State Highway Patrol officers and State Law Enforcement Division ("SLED") officers on duty at each of the football games, the Petitioner will provide

additional private security guards, as well as employing a minimum of twelve to fourteen off-duty Pickens County Sheriff's Department deputies, to assist in generally enforcing the Petitioner's alcohol management policies and procedures at each game and specifically to prevent underage drinking.

17. In excess of 500 city, county, state, and contract law enforcement officers will be present at each game to provide security and ensure enforcement of all applicable laws relating to the sale and consumption of beer and wine.

18. None of the law enforcement agencies and officials who will be involved in security and law enforcement at the Carolina Panthers games at the Stadium has protested the Petitioner's applications for special permits for beer and wine sales at the Carolina Panthers games.

19. Though there are several churches within a one mile radius, the proposed location is not in close proximity to any church, school or playground. The closest church is located 1,068 feet from the proposed location. However, located directly beside that church is a business named "Charlie T's" which holds a beer and wine permit. The Intervenor's church is located 2,311 feet from the proposed location.

20. Currently, beer and wine are served on the campus of Clemson University at the University Union Pub. The Pub, known as "Edgar's," is located approximately 500 yards from the Stadium and has served beer and wine on Sunday at special events. Furthermore, the establishment known as "Charlie T's," which holds a beer and wine permit, is located just over 1,000 yards from the Stadium.

21. The Intervenor has never protested the issuance of any previous beer and wine permit for either the Stadium or the Clemson University Union Pub.

22. Clemson University provides special programs to educate students on policies and procedures for the prevention of underage drinking and responsible alcohol consumption by students over twenty-one years of age. The alcohol education programs are provided by the University's health services. The programs are presented in numerous ways, including but not limited to freshman orientation, a peer education program held in the residence halls, special programs presented to the students, pamphlets, and the students' and parents' handbooks. The students are educated as to their

responsibilities regarding the use of alcohol, the applicable laws regarding alcohol use, and the educational process offered by Clemson University.

23. The issuance of the special beer and wine permits as requested by the Petitioner would not adversely effect the community, impede the enforcement of traffic laws, or detrimentally impact the students or use of Clemson University. Thus, the proposed location is suitable for a beer and wine permit with the restrictions set forth in my Order dated June 26, 1995, concerning the two preseason games.

24. On February 4, 1987, the Alcoholic Beverage Control (ABC) Commission issued an internal policy that "special permits" pursuant to S.C. Code Ann. § 61-9-360 (Supp. 1994) may be issued for any day of the week, including Sundays. That policy was revised on both June 24, 1987 and May 22, 1989 but remained in effect. After the functions and duties of the ABC Commission were transferred to the Department pursuant to 1993 S.C. Acts 181 (commonly known as "the Restructuring Act"), the Department ruled that the existing policies and procedures of the Commission were to be adopted by the Department.

25. The Petitioner seeks "special permits" for beer and wine sales at the Stadium, beginning at 12:00 a.m., on the following dates:

1. Sunday, September 17, 1995

2. Sunday, October 1, 1995

3. Sunday, October 15, 1995

4. Sunday, October 22, 1995

5. Sunday, November 19, 1995

6. Sunday, December 3, 1995

7. Sunday, December 10, 1995

8. Sunday, December 17, 1995

.

Based upon the foregoing Findings of Fact and the applicable law, the Court concludes, as a matter of law, the following:

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

2. South Carolina Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance of a beer and wine permit. Furthermore, S.C. Code Ann. § 61-9-360 (Supp. 1994) sets forth the authority for the Department to grant special permits for fairs or special events. The preseason Carolina Panthers games are special events within the meaning of that statute.

3. 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.

4. Permits and licenses issued by the state for sale of liquor, beer and wine are not rights or property, but are 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'n, 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.

5. The Petitioner satisfies all of the statutory requirements for holding a special beer and

wine permit for fairs and special functions.

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 proposed location and the nature of the event are suitable and proper for a "special permit" under Section 61-9-360. 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 Clemson United Methodist Church protests 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. After a hearing into this matter on May 8, 1995, I conducted a telephone conference with the Petitioner and the Respondents. I ordered that the Department take a position in this case as to whether Carolina Panthers games at the Stadium are a "special function" and whether the "special permits" for those games are authorized to be issued under Section 61-9-360 for Sunday sales. The Department, in a Memorandum dated July 12, 1995, responded that the games are "special

functions" and are properly permitted for Sunday sales under Section 61-9-360. However, the Department failed to support its position with any statutes or case law, as ordered by this Court. In other words, the Department has simply set forth that the permits have been issued in the past and therefore should be issued in this case. "Special permits" for Sunday sales have indeed been issued during the past eight years. However, historically, the Commission previously denied the issuance of those permits before reversing its position, for no apparent reason, in 1987. Thus, between 1951 [the year Section 61-9-360 (Supp. 1994) was first enacted] and February 1987 no "special permits" were issued for Sunday sales.

12. This tribunal is aware that the Department has routinely issued "special permits" for Sunday beer and wine sales in the past. There has been no outcry of public sentiment to end the issuance of these permits. However, neither the number of permits issued over the past years, nor the fact that no one has challenged the issuance of "special permits" for Sunday sales, are matters that may be determining factors in the outcome of this case. Instead, my decision must be made pursuant to the record before me, the South Carolina Alcoholic Beverage Control Act, and case law of the state of South Carolina.

13. It is well settled that the interpretation of a statute by an agency charged with its administration is to be accorded the most respectful consideration and that interpretation should not be overruled absent compelling reason. Jasper County Tax Assessor v. Wesvaco Corporation, 305 S. C. 346, 409 S.E. 2d 333 (1991); Dunton v. S.C. Bd. of Examiners of Optometry, 291 S.C. 221, 353 S.E. 2d 132 (1987). However, the Department's administrative interpretation cannot support the "perpetration of a patently erroneous application of the statute." Monroe v. Livingston, 251 S.C. 214, 161 S.E. 2d 243, 244 (1968). Furthermore, the consideration given to the agency's interpretation of the statute is granted only when the meaning of the statute is doubtful. When "the language of the statute is plain and unambiguous and conveys a clear and definite meaning" the doctrine giving effect to the agency's construction of the statute is inapplicable. Davidson v. Eastern Fire & Casualty Insurance Co., 245 S. C. 472, 141 S.E. 2d 135, 136 (1965); accord Carolina, C. & O. Ry. v. South Carolina Tax Commission, 197 S.C. 529, 15 S.E. 2d 764 (1941). In this case, the language of Sections 61-9-90 and 360 is unambiguous.

14. S. C. Code Ann. § 61-9-90 sets forth that it shall be unlawful for "any person to sell or offer to sell any beer or wine in this State between the hours of twelve o'clock Saturday night and

sunrise Monday morning" (emphasis added). The above provision is set forth in Chapter 9 of the Alcoholic Beverage Control Act that specifically regulates the sale of beer and wine. The exception to this blanket prohibition is also set forth in the same section. If "any establishment licensed pursuant to Sections 61-5-10 to 61-5-160" is authorized to sell alcoholic beverages in mini-bottles on Sundays, that establishment shall be allowed to sell beer and wine on Sunday. The Petitioner contends that the exception's reference to retail establishments reveals a legislative intent that Section 61-9-90 applies only to retail licensees. This interpretation, however, ignores that the blanket prohibition applies to "any person" whereas the limited exception applies only to retail establishments.

Furthermore, in Pennsylvania Nat'l. Mutual Casualty Insurance Company v. Parker, 282 S. C. 546, 320 S.E. 2d 548 (Ct. App. 1984), the Court sets forth the statutory rule of construction entitled "expressio unius est exclusio alterius." Under this rule, exceptions enumerated in a statute give rise to a strong inference that no other exceptions were intended. Id. at 463. Section 61-9-360 provides that the Department may issue "special permits" for fairs and special functions to run for a period of 15 days. The General Assembly did not specify any exception to Sunday sales in this provision. Thus, the strong inference arises that the General Assembly had no intention that these "special permits" be exempted from the Sunday sales prohibition expressed in Section 61-9-90. This conclusion is further strengthened by the General Assembly's passage of S.C. Code Ann. §61-9-312 (Supp. 1994). In that provision, the General Assembly established the authority of the Department to issue "special permits" for off-premise consumption on Sunday in counties that approved of Sunday sales by referendum. That statute is exemplary of the rule of statutory construction enunciated in Parker. The General Assembly intended that there be a specific exception for off-premise beer and wine sales on Sunday in counties in which a referendum had passed, and therefore, issued a special permitting statute specifically allowing for that to occur. If the General Assembly had intended for Sunday sales to be authorized under the "special permit" statute of Section 61-9-360, those Sunday sales would have been specifically authorized.

15. The Petitioner argues that Sunday sales are authorized under Section 61-9-360 because that section was passed subsequently to the passage of Section 61-9-90. A well-established rule of statutory construction sets forth that if two conflicting provisions are found in the same or different statutes, the statute that is last in "point of time or order of arrangement" prevails. Feldman

v. S.C. Tax Comm'n., 203 S.C. 49, 26 S.E. 2d 22, 24 (1943). However, the Sunday sales prohibition found at Section 61-9-90 does not conflict with the "special permits" section found at Section 61-9-360. In Home Building and Loan Ass'n. v. City of Spartanburg, et al., 185 S.C. 313, 194 S. E. 139 (1937), the Supreme Court held that the Courts must give full effect to each section of a statute. Since the special permitting portion of Section 61-9-360 does not in any way limit the application of the Sunday prohibition found in Section 61-9-90, both statutes may be read together without finding a conflict between them. Furthermore, the doctrine of last point in time is "purely an arbitrary rule of construction and is to be resorted to only when there is clearly an irreconcilable conflict and all other means of interpretation have been exhausted." Feldman, 26 S.E. 2d at 24. In this case, no such irreconcilable conflict exists and the statutes can be read giving the full effect to both.

16. A cardinal rule of statutory construction is to seek to determine the intent of the legislature. In Abell v. Bell, 229 S.C. 1, 91 S.E. 2d 548 (1956), the Court held that "a statute must be construed in the light of its intended purpose; and if such purpose can be reasonably discovered in its language, the purpose will prevail over the literal import of the statute, for the dominant factor in the rule of construction is the intent, not the language, of the legislature." Id. at p. 550. The General Assembly's passage of S.C. Code Ann. § 61-5-180 (Supp. 1994), providing voters the option to approve a referendum allowing Sunday sales of alcohol, indicates the General Assembly's intent to relax the prohibition for Sunday sales of beer and wine. As explained above, Section 61-9-90 provides that any establishment authorized to sell alcoholic beverages in mini-bottles on Sunday may also sell beer and wine on Sunday. However, nothing in the language of Sections 61-9-90 and 360, or the Alcoholic Beverage Control Act, offers a reasonable basis to conclude that the General Assembly intends that beer and wine be sold pursuant to "special permits" on Sunday in counties or localities that have not passed the "local option" referendum.

17. Though this decision may not be in keeping with the practices of the surrounding states or the prevailing public or business sentiment, South Carolina's current statutory law allows for no other decision but to deny the Petitioner's request for the eight regular season "special permits."

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Application of Lawrence A. Hatch for eight Sunday regular season Carolina Panthers football games commencing on September 17, 1995, through December 17, 1995, (AI's 102692, 102693, 102694, 102695, 102696, 102697, 102698, and 102699) at Clemson Memorial Stadium is denied.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

Columbia, South Carolina

August 11, 1995