ORDERS:
DECISION AND ORDER
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, Ruth D. Reynolds, seeks an off-premise beer and wine permit for The Rivers Party
and Bait Shop. A hearing was held on August 23, 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 The Rivers
Party and Bait Shop located at Route 1, Box 501-B, Riverfork Road,
Waterloo, South Carolina. The store is operated as a rural country store
with basic groceries and hunting and fishing supplies. The Petitioner runs
the store primarily by herself.
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 church, school or playground.
6. The Protestant objects to the issuance of this beer and wine permit because:
a. The area cannot be effectively policed
because of the time it takes the Sheriff's
Department to respond to a call at this
specific location. Because of the Response
time and the inability of the Petitioner to see
outside of her store, the Petitioner cannot
insure that drinking does not occur outside
this location;
b. The safety of the residents would be
endangered; and
c. The property values of the residents of the
local area would be lowered.
7. The Petitioner seeks a permit in the rural area of Laurens County, South
Carolina. Though this location has not held a beer and wine permit in the
past, the Waterloo Food Store, located across the street, has held a permit
from 1980 to 1994. In fact, the permit was held by the Petitioner's husband
to 1991, when it was placed in her name. Afterwards, the Petitioner sold
the business and the owners of the store held a permit from 1991 to 1994.
8. No protest was ever made of the permit held by the Waterloo Food Store.
9. Sheriff Moore testified that the Sheriff's Department has three deputies to
patrol the entire area of Laurens County. Open containers are low priority
calls for the Sheriff's Department. The Sheriff admitted that on-premise
locations, as opposed to off-premise locations, are more problematic and
that he objects to the issuance of any permit when the members of the
community protest the permit.
10. The Petitioner cannot adequately view the parking area at the proposed
location to determine if individuals are drinking or loitering on her premises.
11. 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, 281 S.E.2d
118 (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 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. 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. 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 Ruth D. Reynolds for The
Rivers Party and Bait Shop at Route 1, Box 501-B, Riverfork Road, Waterloo, 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, urinating, and
the consumption of beer or wine by her patrons/customers in the parking lot
and exterior area of the proposed location.
2. The Petitioner shall construct a window or windows in her store so that she
can observe the activities in the parking area of her location.
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
October 3, 1995
Columbia, South Carolina |
