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, Danny B. Ruppe, seeks an off-premise beer and wine permit for Auto Stop Food Mart. A hearing was held on October 19, 1995, in the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The proposed location was originally denied a permit for off-premise beer and wine sales on October 19, 1991. Thereafter, the Petitioner made another application for the location in April, 1995. The Department declined to process the application because the location had previously been found to be unsuitable. The Petitioner sought he review of the Department's denial to the Administrative Law Judge Division. Finding three significant material changes since 1991, the Honorable Ray N. Stevens ordered the Department to process the application. See Ruppe v. South Carolina Department of Revenue and Taxation, Docket No. 95-ALJ-17-0425-CC. Those changes are:

1. The location is no longer within close proximity to eight residences.

2. The nature of the area is increasingly commercial.

3. The day care facility that existed in 1991 within close proximity to the location no longer exists.

The above findings of Judge Stevens are binding upon this tribunal. See Carman v. S. C. Alcoholic Beverage Control Commission, ___ S.C. ___, 451 S.E.2d 383 (1994).

The Permit requested by the Petitioner is granted.

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 Auto Stop Food Mart located at 1614 Cherokee Avenue, Gaffney, South Carolina. The location is in a commercial area of Gaffney.

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 school.

6. The Protestants contend that the granting of a beer and wine permit would increase the drug and criminal problems existing in the area. Deputy Sheriff Broome testified that there are more calls to a trailer park in the area than any other area in Gaffney. However, Deputy Broome also testified that the location would receive adequate law enforcement if granted an off-premise beer and wine permit. Furthermore, there are locations with off-premise beer and wine permits four-tenths of a mile away in one direction and two-tenths of a mile away in the other direction.

7. The Protestants also contend that the patrons of the business may litter in the area and sell beer or wine to teenagers. However, they offered no direct evidence to support that contention.

8. The proposed location is suitable for an off-premise beer and wine permit with the restrictions and stipulations 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. Without sufficient evidence of an adverse impact on the community, the application should not be denied if the statutory criteria are satisfied. The fact that protestant objects to the issuance of the permit 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).

7. 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.

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. The Administrative Law Judge Division, 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, S.C. Code 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.

9. 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. [quoting Dunlap & Dunlap v. Zimmerman, 188 S.C. 322, 199 S.E. 296 (1938)]

10. The Petitioner meets all the statutory requirements for holding a beer and wine permit at the proposed location.

The Petitioner stipulated at the hearing that he would abide by the following restrictions if granted an off-premise permit:

1. The Petitioner will have no advertisement of beer, wine or alcohol visible from the exterior of the location.

2. The Petitioner will not seek an on-premise beer and wine permit or any other liquor license for the location in the future.

3. The Petitioner will erect a solid wood fence between Temple Baptist Church and this location.

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the off-premise beer and wine permit application of Danny B. Ruppe for Auto Stop Food Mart at 1614 Cherokee Avenue, Gaffney, South Carolina be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue and Taxation to adhere to the above stipulations and the following restrictions.

1. As long as the Petitioner holds a beer and wine permit for this location the stipulated fence shall be maintained in a good condition to accomplish both the limitation of movement between the properties and a good appearance.

2. The stipulated fence shall be at least six (6) feet in height.

IT IS FURTHER ORDERED that a violation of any of the above stipulations 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 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

December 29, 1995

Columbia, South Carolina