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. (1986 & Supp. 1994) upon an application for an on-premises beer and wine permit for Route 1, Highway 21, at the intersection of Highway 21 and
Catawba Road, Great Falls, South Carolina, in Fairfield County. A hearing was held on
November 13, 1995. The issues considered were the suitability of the proposed business location
for the sale of beer and wine and the suitability of the proposed business activity. The application
for an on-premises beer and wine permit is hereby denied; however, Petitioner is granted leave to
amend his application to one for an off-premises beer and wine permit. If so amended, the off-premises beer and wine permit is granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an on-premises beer and wine permit for a location at Route 1,
Highway 21, at the intersection of Highway 21 and Catawba Road, Great Falls, South Carolina, in
Fairfield County, having filed an application with the South Carolina Department of Revenue and
Taxation (hereinafter referred to as "DOR"), AI #104663.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestant, and DOR.
(3) 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.
(4) The DOR file was incorporated into the record of the hearing.
(5) The proposed location is in unincorporated Fairfield County, located close to Lake
Wateree in or near the Rocky Mount and Mitford communities, just South of the Chester and
Lancaster County lines.
(6) The immediate area surrounding the proposed location is rural and residential in
nature.
(7) Petitioner operates the proposed location as a convenience store, selling items such as
soft drinks, bread, candy, cigarettes, fishing bait, and over the counter medicines. The location
also has five video poker machines for use by patrons.
(8) Most patrons of the proposed location live outside of the Rocky Mount and Mitford
communities.
(9) The proposed location intends to operate twenty-four hours a day, with the exception
of being closed from 12:00 a.m. Sunday until 8:00 a.m. Monday.
(10) There are at least twenty residences within 1/2 mile of the proposed location.
(11) The proposed location was formerly known as the Rocky Mount Bait & Tackle
Shop. Until approximately eight years ago, the location was licensed to sell beer and wine for off-premises consumption.
(12) There are six churches within the general area of the proposed location.
(13) Petitioner 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 one year.
(14) Petitioner has not had a permit/license revoked in the last two years.
(15) Petitioner is of good moral character.
(16) 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) 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. S.C. ABC Commission, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
(4) 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).
(5) The proposed location is unsuitable for the sale of beer and wine for on-premises
consumption because of the residential nature of the community, the close proximity of residences
and churches, the intended hours of operation of the business, and the convenience store nature of
the business location. The proximity of residences or churches is a proper ground by itself to
deny a permit to a location. William Byers v. S.C. A.B.C. Commission, 305 S.C. 243, 407 S.E.2d
476 (Ct. App. 1984).
(6) The predominately residential character of the immediate vicinity would be adversely
affected by the on-premises sale and consumption of beer and wine on a twenty-four hour basis.
Palmer v. S.C. ABC Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1985); Roche v.
S.C. ABC Commission, 263 S.C. 451, 211 S.E.2d 243 (1975).
(7) Although unsuitable for on-premises sale and consumption of beer and wine, the
proposed location is suitable for the sale of beer and wine for off-premises consumption, given the
past history of the proposed location as a licensed location for such sales, and the convenience
store nature of the present establishment.
(8) 23 S.C. Code Ann. Regs. 7-88 (1976), which authorizes 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) 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).
(10) Petitioner meets the statutory requirements to hold a beer and wine permit.
ORDER
IT IS THEREFORE ORDERED that Petitioner's on-premises beer and wine permit
application is denied.
IT IS FURTHER ORDERED that Petitioner is granted leave to amend his application
from one for an on-premises beer and wine permit to one for an off-premises beer and wine
permit; and if so amended, it is ordered that DOR issue an off-premises beer and wine permit to
Petitioner for the proposed location.
______________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
November 30, 1995
Columbia, South Carolina |