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, Nolan P. Snelling, seeks an on-premise beer and wine
permit for the Bud's Place. A hearing was held on August 1, 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
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 Petitioner seeks an on-premise beer and wine permit for Bud's
Place at 4390 McConnell's Highway, Rock Hill, South Carolina.
2. Notice of the time, date, place and subject matter of the hearing was
given to the Petitioner, Protestants, and South Carolina Department
of Revenue and Taxation.
3. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp.
1994) 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.
4. The Petitioner is of sufficient moral character to receive a beer and
wine permit.
5. The proposed location has previously been permitted for the sale of
beer and wine on-premise. The suitability of the location was
challenged on grounds similar to those raised in this case. After
considering the testimony and evidence presented at a hearing held on
May 25, 1993, concerning that challenge, the ABC Commission
issued a permit with the following restrictions:
1. No outside lighted or flashing signs;
2. Enclosed with a fence, area where
horseshoe and outside activities take
place in the rear;
3. Parking to be banned at the corner that
blocks view of traffic and designated
signs in designated parking areas; and
4. No beer or wine permitted out of
doors after 8:00 p.m.
6. The Protestants complain that the proposed location creates a traffic
hazard. This hazard is created by delivery trucks parking on or near
the roadway and the patrons parking close to the highway. Additional
traffic hazards are created by the flashing signs outside the proposed
location. The Protestants also object to this proposed location
because patrons of the location have been seen urinating and
consuming beer outside the location and trash has been seen on the
premises.
7. The Protestant presented Mr. Smith who testified of only one instance
where he observed an overturned trash can upon the Protestant's
property. Mr. Smith explained that the trash can may have been
overturned by a dog or the wind.
8. The closest resident who appeared at the hearing lived one mile from
the proposed location. None of the residents who live in close
proximity to the location protested the permit. In fact Ms. Vastag,
who lives across from the location, commends the Petitioner for the
improvement he has made to the location since acquiring the
establishment. The Petitioner has changed this location from one
characterized as a "biker bar" to a neighborhood bar and grill. He
now sponsors events at his location that promotes a neighborhood
atmosphere and encourages families and children to attend events at
his location.
9. At the conclusion of the hearing, I requested the Petitioner and the
Protestant present their positions concerning the parking by the
Petitioner's patrons on the right-of-way and any proposed settlement
concerning that issue they may wish to offer. Pursuant to the parties
submissions, I find that the state has a right-of way of thirty-three (33)
feet from the middle of Williamson Road toward the proposed
location. Furthermore, the state has a fifty (50) foot by fifty (50) foot
triangular easement at the intersection of Williamson Road and
McConnell's Highway. That easement is measured from the "actual
intersection."
10. The Petitioner proposes to move his fence located on Williamson
Road, a distance of seven and one-half (7-1/2) feet to create a
parking zone outside the county's right-of-way. However, the
Petitioner contends that he is unable to offer a proposal concerning
the triangular easement because three-fourths (3/4) of the parking
places in front of his establishment would be removed by eliminating
any parking within the easement area. The Protestant objects to any
parking on any state highway easement or right-of-way.
11. The proposed location is not in close proximity to a school, church or
playground.
12. The proposed location is suitable for the sale of beer and wine off-premise with the restrictions set forth in this Order.
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 on-premise beer and wine permit.
4. 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).
5. As the trier of fact, the Administrative Law Judge is authorized to
determine the fitness or suitability of the proposed business location
of a Petitioner 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).
6. 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).
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. S.C. Code Ann. § 61-9-340 (Supp. 1994) provides that upon
determination that the Petitioner 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.
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. The Petitioner meets all the statutory requirements for holding a beer
and wine permit. Accordingly, I conclude that the proposed location
is a proper one for granting the above permit and license 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 Nolan P. Snelling for
Bud's Place at 4390 McConnell's Highway, Rock Hill, 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. The Petitioner and his employees shall prohibit loitering and the consumption of beer,
wine or alcohol by his patrons in the parking lot and exterior area of the proposed
location after 5:00 p.m.
2. The Petitioner shall provide adequate parking which will insure that the patrons of
this location will not need to park upon either Williamson Road or McConnell's
Highway. Specifically, the Petitioner shall not allow parking upon the state right-of
way located thirty-three (33) feet from the middle of Williamson Road. This will
necessitate the moving, or even eliminating, of the fence located upon his property.
The Petitioner shall also ensure that there is no parking within a twenty (20) foot by
twenty (20) foot triangular easement area from the "actual intersection" of Williamson
Road and McConnell's Highway.
3. The Petitioner and his employees shall prohibit urinating in the parking lot and
exterior area of the proposed location by his patrons/customers.
4. The Petitioner shall have no lighted or flashing signs in the parking lot and exterior
area of the proposed location.
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 on-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
September 14, 1995
Columbia, South Carolina |
