SC Administrative Law Court Decisions

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, Paul E. Stephen, seeks an on-premise beer and wine permit and a minibottle sale and consumption license for Tacqueria Tigritos. A hearing was held on October 9, 1995, at the office of Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The Permit requested by the Petitioner is approved.

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. The court has subject matter jurisdiction of this case.

2. The Petitioner seeks an on-premise beer and wine permit and a minibottle sale and consumption license for Tacqueria Tigritos at 104 Frontage Road, Clemson, South Carolina. The location is a Mexican restaurant that seats One Hundred (100) people. The restaurant will open at approximately 11:00 a.m. and close no later than 11:00 p.m..

3. 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.

4. The qualifications set forth in S. C. Code Ann. §61-5-50 and §61-9-320 (Supp. 1994) concerning the residency and age of the Applicant are properly established. Furthermore, the Applicant 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.

5. The Petitioner's proposed location is not within Three Hundred (300) feet of any church, school or playground.

6. The proposed location is in an area zoned commercial within the city limits of Clemson and has been licensed on several occasions in the past. The restaurant is located at the corner of two four-lane highways with trees located on both sides and behind the business.

7. The Petitioner is conducting a bonafide business which 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).

8. 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 minibottle sale and consumption license.

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 minibottle license be granted only to a bonafide 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, 281 S.E.2d 118 (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 minibottle 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. No new sale and consumption license may be granted to business that is within 300 feet of any church, school or playground if the business is situated in a "municipality" or 500 feet if the business is outside a "municipality." S.C. Code Ann § 61-5-50(3) (Supp. 1994).

10. In Stewart v. South Carolina Department of Revenue and Taxation, No. 94-ALJ-17-0181-CC (July 27, 1994), the Honorable Stephen P. Bates determined that this location was suitable for an on-premise beer and wine permit and a minibottle sale and consumption license with the restrictions set forth in the Order. The Petitioner stipulated that he would accept those restrictions upon his location. In Carman v. S.C. ABC Commission, S.C. , 451 S.E.2d 383 (1994), the South Carolina Supreme Court held that "[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have an adequate opportunity to litigate" the rule of collateral estoppel applies. The estoppel of a judgement applies to facts and issues that are not expressly litigated if they are "necessary and inevitable inferences in the sense that the judgement could not have been rendered as it was without deciding such points." Carman, supra, (quotings Dunlap & Dunlap v. Zimmerman, 188 S.C. 322, 199 S.E. 296)

11. 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.

12. 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.

13. I conclude that the Petitioner meets the remaining statutory requirements not addressed in Stewart, supra. for holding a beer and wine permit and a minibottle 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 and stipulations.

The Petitioner stipulated at the hearing that he would abide by the following restrictions at the proposed location if granted both a permit and license:

1. There shall be no outside live music after 10:00 p.m. See Petitioner's Exhibit 1E.

2. There shall be no live music inside after 11:00 p.m.

3. The Petitioner or his employees shall patrol and monitor the parking area from 10:00 p.m. until closing to insure that his patrons do not loiter or create a public disturbance in the parking lot.

4. The Petitioner shall provide and maintain at least fifty (50) parking places.

Based upon the Findings of Fact and Conclusions of Law, It is Hereby:

ORDERED, that the application of Paul E. Stephen for an on-premise beer and wine permit and a minibottle sale and consumption license at 104 Frontage Road, Clemson, 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 set forth above and the following restriction.

The Petitioner shall not allow excessive noise to emanate from the proposed location. For the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facia evidence of a violation of this provision.

IT IS FURTHER ORDERED that a violation of any of the above stipulations or restriction 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 sale and consumption license upon the payment of the required fee and cost by the Petitioner.

AND IT IS SO ORDERED.

_______________________________________

Ralph King Anderson, III

Administrative Law Judge

October 12, 1995

Columbia, South Carolina