ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and
§ 1-23-310, et seq., upon an application for an on-premises beer and wine permit for 6315 Range
Line Road, Nichols, South Carolina, by Kirby Reaves filed with the South Carolina Department of
Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on September 8,
1995, at the Horry County Court House in Conway, South Carolina. The permit is opposed on
the following issues: (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 6315 Range Line Road,
Nichols, South Carolina, having filed with DOR application # BW-103393.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, and DOR.
(3) DOR did not appear at the hearing nor indicate any opposition to the issuance of the
permit or license.
(4) The proposed location is located in rural northeast Horry County.
(5) The proposed location is on a dirt road known as Range Line Road. Range Line
Road intersects with Spring Branch Road
(6) The immediate vicinity of the proposed location is rural, wooded, and residential in
nature.
(7) There are three residences within 420' of the proposed location.
(8) There are at least two other licensed locations within two miles of the proposed
location.
(9) The proposed location is a former tobacco barn with a capacity of approximately 30
persons.
(10) Petitioner operates the proposed location as a pool and video hall, also serving
snacks.
(11) The proposed location was previously licensed to sell beer and wine when operated
by a former owner.
(12) The former owner, Ruby Farris, occasionally had live music at the proposed location.
(13) Petitioner does not intend to have live entertainment.
(14) The intended hours of operation are Thursday, 7:00 p.m. to 11:00 p.m.; Friday and
Saturday, 7:00 p.m. to 12:00 midnight.
(15) The proposed location is patrolled by the Horry County Police Department. The
sector in which the business is located is sparsely populated and large in size. Police response
time is to a call from the proposed location may be as long as forty minutes, depending upon the
location of the officer at the time of the call.
(16) Protestant Maj. Herman Enzor of the Horry County Police Department resides in
close proximity to the proposed location and opposes the issuance of the permit on the grounds
that noise, traffic, and safety problems existed under the previous licensee.
(17) Noise from the proposed location may disturb nearby residents.
(18) The intended hours of operation provide a balance between Petitioner's business
interests and the community's safety and comfort concerns.
(19) The applicant is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained her principal residence in South Carolina for more than thirty days.
(20) The applicant has not had a permit/license revoked in the last five years.
(21) The applicant is of good moral character.
(22) 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.
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. 1993) 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. 1993) 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. 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 rural nature of the vicinity, 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 Rule 29(B), ALJD Rules of Procedure, 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 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.
(4) The licensed premises must be closed for business between the hours of 12:00
midnight and 10:00 a.m.
(3) No live music is allowed on the licensed premises.
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
September 19, 1995
Columbia, South Carolina |
