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. (1986 & Supp. 1994) upon an application for an on-premises beer and wine
permit for Route 1, Box 273-X, Bishopville, South Carolina, by Michael Holloman filed with the
South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A
hearing was held on July 19, 1995. The permit is opposed by L.M. Davis, a local resident and
Elder of a nearby church. The issues considered were: (1) the suitability of the proposed business
location; and (2) the nature of the proposed business activity. The permit is granted, with
restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an on-premises beer and wine permit for Route 1, Box 273-X,
Bishopville, South Carolina, having filed with DOR application AI #102649.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) The proposed location is located in rural Lee County, approximately five miles from
Bishopville and ten to twelve miles from Lynchburg and Elliott.
(4) The proposed location is on a dirt road known as Bramlett Road. Bramlett Road is a
loop, intersecting on each end of the loop to Mt. Pleasant Church Road, a secondary road. Mt.
Pleasant Church Road intersects with Browntown Road.
(5) The immediate vicinity of the proposed location is rural, wooded, and residential in
nature.
(6) There are three residences within 300 feet of the proposed location.
(7) Two churches are located within .4 miles of the proposed location.
(8) There are two other licensed locations within two miles of the proposed location.
(9) The residents in the surrounding community include children and elderly persons.
(10) The proposed location was previously licensed to sell beer and wine when operated
by a former owner.
(11) Protestants L.M. Davis and Willie Black, Sr. oppose the issuance of the permit on
the grounds that they fear noise, traffic, crime, and safety problems if the location is allowed to
sell beer and wine.
(12) Noise from the proposed location caused by music, car traffic in the parking lot, and
patrons entering and leaving the establishment may disturb nearby residents.
(13) The current outdoor lighting at the proposed location is inadequate for security
supervision and parking during evening hours.
(14) Petitioner intends to hire an off-duty police officer as a security guard during
operating hours.
(15) The intended hours of operation of the proposed location are 9:00 p.m. to 1:00 a.m.,
Thursday through Saturday.
(16) The intended hours of operation provide a balance between Petitioner's business
interests and the community's safety and comfort concerns.
(17) The applicant is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than one year.
(18) The applicant has not had a permit/license revoked in the last five years.
(19) The applicant is of good moral character.
(20) 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.
(21) DOR did not appear at the hearing and did not indicate any opposition to the
issuance of the permit or license.
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 permit to sell 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) 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.
(6) 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).
(7) The proposed location is suitable and proper, in light of the past commercial use of
the location, the nature of the business, and the restrictions on the license contained in this Order.
(8) Applicant meets the statutory requirements for issuance of a beer and wine permit..
(9) Pursuant to ALJD Rule 29(B), all issues raised in these proceedings not expressly
addressed in this Order are deemed denied.
ORDER
IT IS THEREFORE ORDERED that the on-premises beer and wine permit application
be granted, with the following restrictions and conditions, upon the applicant signing a written
agreement to be filed with DOR to adhere to the stipulations set forth below:
(1) The permittee must employee security personnel to patrol the licensed
premises and outdoor parking area during all hours of operation.
(2) The permittee must not sell, serve, or allow possession or consumption of
beer or wine on any part of the licensed premises except for the indoor area of the
licensed premises.
(3) Licensee must install, operate, and maintain adequate outdoor lighting in
the parking area of the proposed location to assist in supervision of activity in the
parking lot and provide safety for patrons and neighboring residents.
(4) The licensed premises must not be open for business between the hours of
1:00 a.m. and 9:00 p.m.
IT IS FURTHER ORDERED that a violation of any of the above conditions is
considered a violation against the permit and may result in a fine, suspension, or revocation.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
July ____, 1995 |
