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, Maureen S. Payne, seeks an off-premise beer and wine permit
for Country Crossroads. A hearing was held on August 22, 1995, in 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. 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.
2. The Petitioner seeks an off-premise beer and wine permit for Country
Crossroads located at 7162 Flat Rock Road, Heath Springs, South
Carolina. The store is operated as a rural country store with basic
groceries and hunting and fishing supplies. The Petitioner stipulates
that her business will remain open no later than 9:00 p.m. The
Petitioner, also, stipulates that she will remove the billiard table and
jukebox located in storage so as to eliminate any concern that she is
encouraging on-premise consumption of beer or wine.
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 is not close to any school or playground.
6. The proposed location is 300 hundred feet from Beaver Creek
Presbyterian Church. However, the Church does not oppose the
granting of an off-premise beer and wine permit.
7. On behalf of the Protestants, Wayne and Marshall Robinson testified
that a beer and wine permit at the proposed location would attract
undesirable people to the location, increase the litter in the area, and
create a traffic hazard.
8. Major Johnnie Cauthen, Lancaster County Sheriff's Department,
testified that the proposed location is located on a heavily traveled
road and that he believes the Sheriff's Department does not have
adequate work force to police the area. Major Cauthen confirmed
that he does not believe that the county, as a whole, has adequate
manpower. Furthermore, the location is on a slight curb in which the
intersection is visible from at least 1,000 yards away. The only specific
traffic problem that currently exists would be if cars were allowed to
park along the highway at the proposed location.
9. The proposed location is suitable for an off-premise beer and wine
permit with the restrictions set forth below.
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 off-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
permittee.
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 Maureen S. Payne for
Country Crossroads at 7162 Flat Rock Road, Heath Springs, 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 that 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. That the Petitioner remove both the billiard table and jukebox from
the location.
3. That the Petitioner and her employees prohibit parking by her
patron/customers within 15 feet of Flat Rock Road or Kershaw
Country Club Road.
IT IS FURTHER ORDERED that a violation of any of the above restrictions be 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
September 8, 1995
Columbia, South Carolina |
