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, Sandra C. Wilder seeks an on-premise beer and wine permit
and a mini-bottle sale and consumption license for Jammer's. A hearing was held on September 14,
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 on-premise beer and wine permit and a mini-bottle sale and consumption license for Jammer's located at 4334
Spruill Avenue, North Charleston, South Carolina.
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 conducting a bonafide business that meets the
requirements of South Carolina Code Ann. §§61-5-20 (4) and 50
(Supp. 1994) and 23 S. C. Code Ann. Regs. 7-19 (1976).
5. The Petitioner and the corporation possess sufficient moral character
and a reputation in the community to receive both a beer and wine
permit and a mini-bottle sale and consumption license.
6. The proposed location is not within 500 feet of any church, school or
playground.
7. This location was formally operated as a "teen club." The Petitioner
agreed that if she receives a permit she will not allow anyone into her
location that is not at least twenty-one (21) years of age.
8. Currently, the Petitioner does not have sufficient food on hand to feed
forty (40) people. However, the Petitioner stipulated that if granted
a permit by this Court she will acquire sufficient food before obtaining
the permit.
9. The Department denied the Petitioner's permit because at that time she
did not have sufficient seating for forty (40) people. Since that denial,
the Department confirmed that the Petitioner has acquired seating for
forty (40) people.
10. The proposed location is suitable for an on-premise beer and wine
permit and a mini-bottle sale and consumption license with the
restriction set forth in this Order.
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. §§ 6-9-320 and 61-5-50 (Supp. 1994) sets forth the
requirements for the issuance of an on-premise beer and wine permit
and a sale and consumption license.
4. In addition to the requirements set forth above, a license for the sale
and consumption of alcoholic beverages must not be granted unless
the provisions of S.C. Code Ann. § 61-5-50 (Supp. 1994) are met.
That section requires that a mini-bottle license be granted only to a
bonified business engaged either in the business of primarily and
substantially preparing and serving meals or furnishing lodging. The
principals and applicant must not only be of good moral character,
but furthermore, the business must also have a reputation for peace
and good order.
5. 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).
6. 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 beer and wine permit and a mini-bottle sale and
consumption license using broad, but not unbridled, discretion. Byers
v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705,
(Ct. App. 1984).
7. 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).
8. 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 a permit or license
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).
9. 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 or license after payment of the prescribed fee.
10. 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
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.
11. I conclude that the Petitioner meets all the statutory requirements for
holding a beer and wine permit and a mini-bottle sale and consumption
license at the proposed location. Accordingly, I conclude that the
proposed location is a proper one for granting the above permit and
license with the following restriction in the form of a written
stipulation.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premise beer and wine permit and a mini-bottle sale and consumption
license application of Sandra C. Wilder for Jammer's at 4334 Spruill Avenue, North Charleston, South
Carolina be granted upon the Petitioner signing a written Agreement with the South Carolina
Department of Revenue and Taxation to adhere to the stipulation set forth below:
The Petitioner and her employees shall not allow anyone under the age
of twenty-one (21) to enter her premises during business hours.
IT IS FURTHER ORDERED that a violation of any of the above restrictions is 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 on-premise beer and wine permit and a mini-bottle sale and consumption license upon the Petitioner
acquiring sufficient food on premise to feed forty (40) people and the payment of the required fee and
cost.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
September 14, 1995
Columbia, South Carolina |
