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, Gabriele G.Cornett , seeks an on-premise beer and wine
permit for Lady Luck Cafe & Games. A hearing was held on June 27, 1995, at the Administrative
Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The permit requested by the Petitioner is approved with restrictions.
FINDINGS OF FACT
1. The court has subject matter jurisdiction of this case.
2. The Petitioner seeks an on-premise beer and wine permit for Lady
Luck Cafe & Games, 10030 Dorchester Road #11A, Summerville,
South Carolina.
3. Notice of the time, date, place and subject matter of the hearing was
given to the Respondent, Trinity Christian Church, and the South
Carolina Department of Revenue.
4. The qualifications set forth in S. C. Code Ann. § 61-9-320 concerning
the residency and age of the Petitioner are properly established.
Furthermore, the Petitioner 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 Petitioner is of sufficient moral character to receive a beer and
wine permit.
6. The proposed location is not close to any school or playground.
7. The Petitioner's business is located in a strip mall in Summerville
County. Trinity Christian Church ("Church") is also located 165 feet
away in that same strip mall. The Church protested this application
because of the proximity to the Church. However, no one appeared
on behalf of the Church to present evidence in support of their
position.
8. Located approximately 300 feet away from the Church is the Billiard
Academy which holds an on-premise beer and wine permit. The
Billiard Academy was originally issued their permit on November 1,
1993. The Church did not protest the permit application though they
were notified by SLED that an on-premise beer and wine permit
application had been filed. That permit was renewed in February,
1994. The Church, also, did not protest the renewal of the permit
application.
9. The proposed location is suitable only for an on-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. 1993) sets forth the requirements
for the issuance of an on-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. 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).
8. 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).
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 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.
10. I conclude that the Petitioner 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 written
stipulations.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the off-premise beer and wine permit application of Gabriele C.Cornett,
Lady Luck Cafe & Games, Inc. at 10030 Dorchester Road, Summerville, South Carolina, be granted
upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue and
Taxation to adhere to the stipulations which are set forth below:
1. That the Petitioner and her employees shall prohibit loitering and the
consumption of beer or wine by her patrons/customers in the parking
lot and exterior area of the proposed location. This prohibition shall
be strictly enforced.
2. The Petitioner shall have no exterior advertisements or advertisements
which are visible from the outside of his store advertising beer, wine
or any alcoholic beverage. Additionally, the Petitioner should stop
displaying the "Games People Play" sign which indirectly advertises
the playing of video poker .
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 Petitioner.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
July 7, 1995
Columbia, South Carolina |
