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. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994) for
a contested case hearing. The Petitioner, Rebecca R. Johnson , seeks an on-premise beer and wine
permit for the Fireside Bar & Grill. A hearing was held on November 21, 1995, at the Administrative
Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The permit requested by the Petitioner is approved with restrictions.
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 Fireside
Bar & Grill at 5531 Edmund Highway, Lexington, South Carolina.
2. Notice of the time, date, place and subject matter of the hearing was
given to the Respondent, the Protestants, and the South Carolina
Department of Revenue.
3. The qualifications set forth in S. C. Code Ann. § 61-9-320 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 school or playground.
6. The Protestants object to the issuance of a permit to the Petitioner for the
following reasons:
a) Excess noise has emanated from the
location and this problem will worsen
after the Petitioner opens her business.
b) There have been arguments and cars
squealing tires in the parking area late at
night at this location. This behavior is not
proper in this residential community.
c) The area has changed to a more
residential community since the previous
location held a off-premise permit.
7. The Petitioner testified that her business will not be a club or bar, but
rather a family restaurant. She plans to serve breakfast, lunch and dinner
at this restaurant. The bar area is 20 feet by 20 feet and seats
approximately 10 people. The restaurant would have live bands only on
rare occasions.
8. The proposed location was previously permitted for the sale of off
premise beer and wine from 1952 to 1974. Though there are numerous
residences located along Highway 302 in front of the proposed location,
the area is zoned commercial. The residential nature of the community
is basically the same as in 1974 with the exception of a new trailer park
established next to the proposed location. The trailer park which open
in 1986 is located 200 feet from the proposed location and has
approximately 14 mobile homes. The residents are primarily senior
citizens and married couples with young children. The rules and
regulations of the trailer park stress cleanliness and a limitation of loud
music.
9. The Petitioner stipulated that she would erect a six-foot wooden privacy
fence, post signs in the parking area stating that drinking and loitering
are prohibited and ensure that the sound system does not emit excessive
noise outside of the proposed location.
10. The proposed location is suitable for an on-premise beer and wine permit
only for use as a family restaurant as the Petitioner has set forth above.
Furthermore, because this location is now close to the previously
discussed trailer park, the location is suitable only with the restrictions set
forth below.
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. 1994) 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. 1994) 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. 1994) 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, 595, 281
S.E.2d 118, 119 (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. 1994); 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. I conclude that the Petitioner meets all the statutory requirements for
holding an on-premise 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 Rebecca R. Johnson for the
Fireside Bar & Grill at 5531 Edmund Highway, Lexington, South Carolina, be granted upon the
Petitioner signing a written Agreement with the South Carolina Department of Revenue and Taxation
to adhere to the stipulations set forth in the Findings of Fact and those set forth below:
1. The Petitioner or her employees shall monitor the parking area from
10:00 p.m. until closing to insure that her patrons do not loiter or create
a public disturbance in the parking lot.
2. The Petitioner shall have no exterior advertisements which are visible
from the outside of her business advertising beer, wine or any alcoholic
beverage.
3. The Petitioner shall not allow the sale of beer or wine after 11:00 p.m.
4. The Petitioner shall not allow excessive noise to emanate from the
proposed location. For the purposes of this restriction, any conviction
for the violation of the county noise ordinance shall be considered prima
facia evidence of a violation of this provision.
IT IS FURTHER ORDERED that a violation of any of the above restrictions is 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 5, 1996
Columbia, South Carolina |
