South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Regina B. Floyd, d/b/a Regina's vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Regina B. Floyd, d/b/a Regina's

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0617-CC

APPEARANCES:
Regina Floyd, Petitioner (Pro Se)

S.C. Department of Revenue and Taxation
Respondent (Not present at the hearing)

James G. Branham, Protestant (Pro Se)
 

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


Brown Bldg.

 

 

 

 

 

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