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, Shirley A. Stewart, seeks an on-premise beer and wine
permit for Community Billiard Parlor. A hearing was held on August 15, 1995, at the office of
Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The Permit requested by the Petitioner is denied.
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. Notice of the time, date, place and subject matter of the hearing was
given to the Petitioner, Protestants, and the South Carolina
Department of Revenue and Taxation.
2. 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.
3. The Petitioner seeks an on-premise beer and wine permit for
Community Billiard Parlor located at 380 Union Street, Spartanburg,
South Carolina.
4. The Petitioner was convicted of assault and battery on December 27,
1983, and of carrying a concealed pistol on April 24, 1978.
5. The Department's application for a beer and wine permit requests the
applicant to respond as to whether they had been "arrested, taken into
custody, charged, paid a fine or posted bond for allegedly violating
any law in this or any other state in the past twenty (20) years." The
applicant responded that yes, she had been convicted and included
verification of her conviction for the above assault and battery charge.
She contends that she went twice to the Union Sheriff's Department
to determine whether she had any other convictions and was informed
that the only outstanding conviction they had on record was the
conviction in 1983 for assault and battery. The Petitioner pled guilty
to the 1978 gun charge and was sentenced to sixty (60) days or a Two
Hundred ($200.00) Dollar fine. See, Respondent's Exhibit 2. I find
tht the 1978 gun charge conviction was certainly memorable to the
Petitioner, and that the Petitioner knowingly failed to report it to the
Department.
6. The proposed location is in an area in Spartanburg where drug sales
and crime are common. Sullivan's Lounge is approximately twenty
(20) feet from the proposed location and a pool hall named the Elks
Club is seventy-five (75) feet from the proposed location. Both of
these establishments hold on-premise beer and wine permits.
Numerous drug arrests have been made in close proximity to both
businesses. The Protestant contends that granting another on-
premise beer and wine permit in this area would only result in
additional crime.
7. The Petitioner has agreed to hire a security guard to be present upon
her premises if the Court finds such action to be necessary. Though
the Petitioner believes that cost may prohibit her from hiring a licensed
security guard, she has agreed to hire a bonded security guard.
8. Clancy's, which holds an on-premise beer and wine permit and a mini
bottle license, is located one hundred and fifty (150) feet from the
proposed location. Clancy's employs a security guard, a practice
which has alleviated many of the problems which are found in the
vicinity of Sullivans and the Elks Club.
9. The proposed location is unsuitable for a beer and wine permit
because even with the hiring of a security guard, an additional
business with a beer and wine permit would adversely impact an
"already troubled" community.
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, 281
S.E.2d 118 (1981).
5. As the trier of fact, the Administrative Law Judge is authorized to
decide 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. Permits and licenses issued by this state for the sale of liquor, beer and
wine are not property rights. They are, rather, privileges granted in
the exercise of the state's police power to be used and enjoyed only so
long as the holder complies with the restrictions and conditions
governing them. Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26
S.E.2d 22 (1943).
8. S.C. Code Ann. § 61-9-340 (Supp.1994) sets forth that "any
misstatement or concealment of fact in an application shall be a
sufficient ground for the revocation of the permit issued by reason of
such application." Likewise, "[a] misstatement under oath or a
concealment of [a material] fact" is sufficient basis to deny a beer and
wine permit. Wall v. South Carolina Alcohol Beverage Control
Com'n. 269 S.C. 13, 235 S.E.2d 806 (1977).
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Shirley A. Stewart for this on-premise beer and wine
permit be denied.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
September 28, 1995 |
