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, Linda Harkins seeks an on-premise beer and wine permit and
a club mini-bottle sale and consumption license for Club Hideaway. A hearing was held on October
24, 1995, in the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South
Carolina.
The Permit requested by the Petitioner is approved with a restriction.
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 club
mini-bottle sale and consumption license for Club Hideaway located
at 507 W. Georgia Road, Simpsonville, 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 bonified 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).
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 club mini-bottle sale and consumption license.
6. The proposed location is not within 300 feet of any church, school or
playground.
7. The Petitioner's spouse, William D. Harkins, was convicted of
soliciting prostitution and engaging in a sexually oriented business in
1990 and 1994, respectively. The Petitioner stipulates that her spouse
will not be involved in this business in any manner.
8. The proposed location is suitable for an on-premise beer and wine
permit and a club mini-bottle sale and consumption license with the
restriction 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. §§ 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 club 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 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.
11. I conclude that the Petitioner meets all the statutory requirements for
holding a beer and wine permit and a club 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 club mini-bottle sale and
consumption license application of Linda Harkins for Club Hideaway at 507 W. Georgia Road,
Simpsonville, 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 which is set forth
below:
That the Petitioner shall prohibit William D. Harkins from being an
employee, agent or servant of this business.
IT IS FURTHER ORDERED that a violation of the above 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 club mini-bottle sale and consumption license 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 27, 1995
Columbia, South Carolina |
