ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
S.C. Code Ann. § 1-23-310, et seq. (Supp. 1994) for a hearing on the application of Regina B.
Floyd. Petitioner seeks an on-premises beer and wine permit (AI 104613) for a convenience
store located at Route 2, Box 33-A, Highway 21, Ridgeway, Fairfield County, South Carolina.
After timely notice to the parties and the protestant, a hearing was held at the
Administrative Law Judge Division in Columbia, South Carolina. One protestant of record
appeared, James G. Branham. The protestant did not move to intervene as a party. The issues
considered at the hearing were: (1) the Petitioner's eligibility to hold a beer and wine permit; (2)
the suitability of the proposed business location; and (3) the nature of the proposed business
activity. The on-premises beer and wine permit is hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks an on-premises beer and wine permit for a convenience store
located at Route 2, Box 33-A, Highway 21, Ridgeway, Fairfield County, South Carolina.
2. Petitioner's application to the South Carolina Department of Revenue and Taxation
("Department") was made a part of the record by reference.
3. The proposed location is situated directly off of Highway 21 and the area
surrounding the proposed location is predominantly residential in nature.
4. There are other businesses in the vicinity of the proposed location which hold beer
and wine permits. Directly adjacent to the proposed location is Millie's, a restaurant, which holds
an on-premises beer and wine permit. Also, Runaway #5 which is situated directly across
Highway 21, in front of the proposed location, holds an on-premises beer and wine permit.
Further, Little Counter, which holds an on-premises beer and wine permit, is located two (2)
blocks away from the proposed location.
5. No church, school, or playground is within close proximity to the proposed
location.
6. Petitioner's proposed daily hours of operation are from 10:00 a.m. to 12:00 a.m.
7. Petitioner owns the proposed location and intends to operate and manage it.
8. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of the Petitioner. The SLED report revealed no criminal violations that imply the
absence of good moral character.
9. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained her principal residence in the state for at least thirty (30) days prior
to the date of making application for an on-premises beer and wine permit.
10. Petitioner has never held a beer and wine permit or other license for the sale or
consumption of alcoholic beverages. However, the proposed location was previously licensed
from 1984-1995, in the name of Petitioner's husband, who is now deceased.
11. Notice of the application appeared in The Herald-Independent, a newspaper of
general circulation in the area of the proposed location, for three (3) consecutive weeks and
notice was posted at the proposed location for fifteen (15) days.
12. The Department did not oppose the application, as evidenced by its failure to
appear at the hearing.
13. Mr. James G. Branham, a nearby resident, testified in opposition to the application.
As justification for denial of the beer and wine permit, he cited occurrences of excessive early
morning noise over the last ten (10) years, and as recently as 1994. The protestant attributes the
noise to patrons of the proposed location who loiter on the outside of the premises. Mr. Branham
has no objection to the issuance of the permit, if the noise from the patrons loitering could be
eliminated. Through his actions, restrictions were placed on the licenses of two other businesses
to vastly curtail noise from these locations. He believes that if Petitioner closed by midnight,
disturbances in the early morning hours would be virtually eliminated.
CONCLUSIONS OF LAW AND DISCUSSION
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) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance
of a beer and wine permit.
3. Although "proper location" is not statutorily defined, broad discretion is vested in
the Administrative Law Judge Division in determining the fitness or suitability of a particular
location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
4. As the trier of fact, an administrative law judge is authorized to determine the
fitness or suitability of the proposed business location of an applicant for a permit to sell beer and
wine using broad, but not unbridled discretion. Ronald F. Byers v. South Carolina ABC Comm'n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. Petitioner meets all of the criteria enacted by the South Carolina General Assembly
for the issuance of an on-premises beer and wine permit. However, since the area where the
proposed location is situated is primarily residential, the conduct of Petitioner's business must be
in a manner conducive to the harmonious coexistence of her business and the nearby residents.
Mr. Branham does not oppose her business. His main objective in protesting was to ensure that
certain measures were taken so he would not be disturbed by noises emanating from loitering
patrons of the Petitioner's business.
6. Permits and licenses issued by the State for the sale of liquor, beer, and wine are
not rights or property, but are 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 Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
7. 23 S.C. Code Regs. 7-88 (1976), authorizing the imposition of restrictions to
permits, provides:
Any stipulations 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 permits and 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.
The Petitioner intends to close her business at least by 12:00 a.m.; therefore, the
imposition of a restriction precluding her from selling alcoholic beverages after 12:00 a.m. will not
interfere with her business operation. Further, such a restriction will address the concerns of Mr.
Branham.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that an on-premises beer and wine permit is hereby granted with restrictions
to Regina B. Floyd for a location at Route 2, Box 33-A, Highway 21, Ridgeway, Fairfield
County, South Carolina upon the Petitioner signing a written agreement to be filed with the
Department to adhere to the following restriction:
1. Petitioner shall, as a condition to the issuance of an on-premises beer and wine
permit, agree not to sell alcoholic beverages beyond 12:00 a.m.
IT IS FURTHER ORDERED that a violation of the above stated restriction is
considered a violation against the beer and wine permit and may result in a fine, suspension, or
revocation.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an
on-premises beer and wine permit upon payment of the required fee(s) and cost(s) by the
Petitioner.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
October 19, 1995
Columbia, South Carolina |