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. 1993) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1993) for
a contested case hearing. The Applicant, Terry J. Bowick, seeks a retail dealer's license in Ward,
South Carolina. A hearing was held on September 7, 1995, at the office of the Administrative Law
Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The License requested by the Applicant is denied.
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 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 license revoked
within the last five years.
3. Notice of the application was lawfully posted both at the location and
published in a newspaper of general circulation at least once a week
for three consecutive weeks.
4. The Petitioner seeks a retail dealer's license at the location of
Highway 23 (adjacent to the "Cupboard"), Ward, South Carolina.
5. The Petitioner is of sufficient moral repute to receive a retail dealer's
license.
6. The proposed location is not within Five Hundred (500) Feet of any
church or school.
7. The town of Ward, where the Petitioner seeks to license his proposed
location, is not an incorporated municipality. There are no salaried
employees and all work performed on behalf of the township is on a
volunteer basis.
8. The proposed location is approximately Three Hundred and Fifty
(350) to Four Hundred (400) Feet from Nan Edison Park. The
property belongs to Nan Edison, but is granted to the town of Ward
for use as a park. It is designated as such by a concrete marker upon
the property. Though there is no specific playground equipment
located upon the property, children often play in the park. Play
consists of informal activities such as football, baseball, bicycle rides
and the playing upon crepe myrtle trees.
9. The proposed location is unsuitable for a retail dealer's license because
the location is within Five Hundred (500) Feet of a playground. This
proximity to the playground is a special concern since the Petitioner
was found to have violated the Alcoholic Beverage Control Act in
1989 by selling alcohol to a minor.
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. § 61-3-420 (Supp. 1994) sets forth the requirements
for the issuance of a retail dealer's license. Furthermore, S.C. Code
Ann. § 61-3-490 (Supp. 1994) establishes the requirements for an
applicant's notice of their intent to apply for a retail dealer's license.
4. An application for a retail dealer's license shall be denied if the
standards of S.C. Code Ann. § 61-3-730 (Supp. 1994) are not met.
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, 281
S.E.2d 118 (1981).
6. As the trier of fact, the Administrative Law Judge is authorized to
decide 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).
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. 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. Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26
S.E.2d 22 (1943).
9. No new license may be granted to a retail liquor business that is within
Three Hundred (300) Feet of any church, school or playground if the
business is situated in a "municipality" or Five Hundred (500) Feet if
the business is outside of a "municipality." S.C. Code Ann § 61-3-440
(Supp. 1994). "Playground" is defined as "a place, other than grounds
at a private dwelling, which is provided by the public or members of
the community for recreation." S.C. Code Ann. § 61-3-440(3) (Supp.
1994) (emphasis added). "Nan Edison" park is a playground under the
statutory definition of playground. Furthermore, S.C. Code Ann. § 5-3-290 (1976) defines "municipality" as "any incorporated city or town
located within this State." See also 62 C.J.S. Municipal Corporations
§ 1(d) (1949). The Legislature's intent to use that definition in the
Alcoholic Beverage Control Act is reflected in S.C. Code Ann. § 61-3-470 (Supp. 1994). Section 61-3-470 provides for the issuance of
licenses in unincorporated towns, such as Ward. Therefore, since
Ward is not a "municipality," and the "Nan Edison" park is located
less than Five Hundred (500) Feet from the proposed location the
issuance of a license would be improper.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED AND ADJUDGED that the application of Terry J. Bowick for this retail
dealer's license be denied.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
October 4, 1995 |
