ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
§§ 1-23-310, et seq. (1986 & Supp. 1994) upon application for an on-premises beer and wine
permit, business sale and consumption liquor license, and alcoholic liqueurs cooking license for
6125 Scenic Highway 11, Pickens, South Carolina, filed by Philip N. Burkett with the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was
held in Pickens, South Carolina, at the Pickens County Courthouse on November 20, 1995. DOR
did not appear. At the hearing, the sole protestant appearing withdrew his protest with the
stipulation that Petitioner agree to incorporate certain restrictions into the licenses and permit.
Petitioner agreed to the stipulations. The permit and licenses are hereby granted with restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner filed with DOR an on-premises beer and wine permit application for a
location at 6125 Scenic Highway 11, Pickens, South Carolina, AI #104627.
(2) Petitioner filed with DOR a business sale and consumption license application for a
location at 6125 Scenic Highway 11, Pickens, South Carolina, AI #104628.
(3) Petitioner filed with DOR an alcoholic liqueurs cooking license application for a
location at 6125 Scenic Highway 11, Pickens, South Carolina, AI #104629.
(4) Notice of the time, date, place, and subject matter of the hearing was given to all
parties and protestants.
(5) DOR did not appear at the hearing; however; DOR filed the following statement with
the Court:
But for the unanswered question of suitability of location, the
Department would have issued this licenses/permit. As the department
has no evidence concerning suitability of this location it does not intend
to appear at the hearing. Its failure to appear at the hearing does not
indicate a waiver of its rights as a party to this action, and is not to be
considered a default under Rule 23 of the Administrative Law Judge
Division. If the Petitioner appeals the Court's decision in this matter,
and no additional parties have been admitted, the department will
actively participate as a party in the appeal.
(6) The sole protestant present at the hearing was Tim Morgan of the Pickens County
Sheriff's Department, appearing on behalf of Sheriff C. David Stone, the only person filing a
written protest to the applications.
(7) Upon stipulation of Philip N. Burkett and Tim Morgan, entered into the record of the
hearing, the protest of the Pickens County Sheriff's Department was withdrawn with the condition
that the following restrictions apply to the permit and licenses applied for:
a. The licensed location will close at midnight each day
of operation; and
b. The licensed location will restrict sales of alcoholic
beverages to patrons to whom food is served.
(8) Petitioner, who is manager and chef, operates the proposed location as a restaurant
which caters to adults and families and offers an extensive dinner menu. It does not contain a bar
or lounge area.
(9) The proposed location is located in rural Pickens County within the police jurisdiction
of the Pickens County Sheriff's Department.
(10) The applicant is over twenty-one years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
(11) The applicant has not had a permit/license revoked in the last two years.
(12) The applicant is of good moral character.
(13) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1994) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
(3) The determination of suitability of a location is not necessarily a function solely of
geography. It involves an infinite variety of considerations related to the nature and operation of
the proposed business and its impact on the community within which it is to be located. Kearney
v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
(4) The proposed location is suitable and proper, in light of the restrictions stipulated to,
to allow the on-premises consumption of beer and wine, the sale and consumption of alcoholic
beverages, and the use of alcoholic liqueurs in cooking food.
(5) 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.
(6) 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 police power of the State
to be used and enjoyed only so long as the restrictions and conditions governing them are
complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for
cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the
permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22
(1943).
(7) Applicant meets the statutory requirements to hold a beer and wine permit, business
sale and consumption license, and alcoholic liqueurs cooking license.
ORDER
IT IS THEREFORE ORDERED that Petitioner's application for an on-premises beer
and wine permit, AI #104627, application for a business sale and consumption license,
AI #104628, and application for an alcoholic liqueurs cooking license, AI #104629, be granted
with the following restrictions, upon the applicant signing a written agreement to be filed with
DOR to adhere to the stipulations set forth below:
a. The licensed location shall close no later than midnight each day
of operation; and
b. The licensed location will restrict sales of beer, wine or alcoholic
beverages to patrons to whom food is served.
_____________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
November 29, 1995
Columbia, South Carolina |
