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:
Mary J. Amerson, d/b/a Carolina Shoppe All vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Mary J. Amerson, d/b/a Carolina Shoppe All

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0629-CC

APPEARANCES:
For the Petitioner: Michael J. Mueller, Esquire

For the Protestants: Pro se

For the Respondent: No Appearance
 

ORDERS:

ORDER AND DECISION

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. 1995) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1995) for a contested case hearing. The Petitioner, Mary J. Amerson, seeks an on-premise beer and wine permit for the Carolina Shoppe All. A hearing was held on November 7, 1995, in the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The Permit requested by the Petitioner is granted.



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. The Petitioner seeks an on premise beer and wine permit for the Carolina Shoppe All at 6803 Monticello Road, Columbia, South Carolina.



2. 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.

3. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp. 1995) 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 church or playground.

6. The Protestants object to the issuance of a permit to the Petitioner for the following reasons:

a) The proposed location is on a heavily traveled road at which there is no traffic light to regulating the flow of traffic out of the area. Therefore, granting the permit would create a traffic hazard in the area.

b) The proposed location is near a residential community and the residents are making efforts to "upgrade" the community.

c) There are already eight or nine establishments that sell beer, wine or alcohol in the area.

d) The proposed location is 8/10 to 9/10 of a mile from the Ben Lippen High School and Middle School. The Protestants' are concerned about the Petitioner selling beer or wine to these students.



7. The proposed location is on well traveled road in a commercial area. The location is approximately 9/10 of a mile from the Ben Lippen High School and Middle School. The location has been licensed for both on-premise and off-premise beer and wine permits in the past. Most recently, a bait and tackle shop held an off-premise beer and wine permit at the location from about 1985 to 1987.

8. There is a residential community about 1/2 of a mile from the location. The homes in the community are older homes and the residents are seeking to keep the area from degrading as a family community.

9. There was little evidence of a change in the residential character of the area since the location last held a beer and wine permit. However, as noted above, the residents are now seeking to preserve the quality of there community. Furthermore, students of the Ben Lippen schools live in the above residential area and travel to the school from their homes.

10. The proposed location is about 20 by 60 feet in size. The Petitioner sells snack foods, collectible cards and provides the use of billiard tables at the location. The Petitioner wishes to provide her billiard customers the opportunity to drink beer or wine. She testified she will be open Monday thru Saturday from 12:00 p.m. to 8:00 p.m.

11. The proposed location is suitable for an off-premise beer and wine permit during the hours the Petitioner set forth above. Furthermore, because of the current nature of the community this location is not suitable as a night club or bar.

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. 1995) 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. 1995) 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. 1995) sets forth the requirements for the issuance of an on 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. 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).

7. 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 the permits is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

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, 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.

9. A permit should be granted to a location that has been recently permitted absent some showing that the location is now less suitable than in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E. 801 (1973).

10. I conclude that the Petitioner meets all the statutory requirements for holding a beer and wine permit at the proposed location. Accordingly, I conclude that the proposed location is a proper one for granting the above permit with the following restrictions in the form of written stipulations.



ORDER


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

ORDERED that the on-premise beer and wine permit application of Mary J. Amerson for the Carolina Shoppe All be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue and Taxation to adhere to the stipulations which are set forth below:

1. The Petitioner shall not sell beer or wine before 12:00 p.m. or after 8:00 p.m.

2. The Petitioner shall not allow any one under the age of 21 in her location who is not accompanied by an adult during the hours the Petitioner is selling beer or wine.

3. The Petitioner or her employees shall monitor the parking area to insure that her patrons do not loiter or create a public disturbance.

IT IS FURTHER ORDERED that a violation of any of the above restrictions are 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 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

January 9, 1996

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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