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, Michael H. Mims, seeks an on-premise beer and wine permit
and a sale and consumption license for Party Animal's Pink Cadillac. A hearing was held on December
12, 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 and a sale
and consumption license for the Party Animal's Pink Cadillac at 1484
Highway 52, Moncks Corner, 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 and Robert Jeffcoat intend to operate this business.
Both these individuals are former law enforcement officers. The
Petitioner is of sufficient moral character to receive a permit and a
license.
5. The Protestants object to the issuance of a permit to the Petitioner for
the following reasons:
a) The proposed location is unsuitable
because of its proximity to a church,
playground and residences in violation
of S.C. Code Ann. § 61-9-320(6)
(Supp. 1995).
b) The proposed location is within 500
feet of a playground as prohibited by
S.C. Code Ann. § 61-3-440 (Supp.
1995).
c) The proposed location is not suitable
under S.C. Code Ann. § 61-3-730
(Supp. 1995).
6. The Protestants object to the proximity of the Berkeley Church of
Christ, the First Christian Church, the First Christian Church's ball
field and the local residences to the proposed location. No one from
the Berkeley Church of Christ or the nearby residences appeared to
protest the issuance of a permit or license in this case. The
Protestants, who appeared, represented the First Christian Church
("Church").
7. Following the route of ordinary vehicular travel, the distance from the
proposed location's entrance to the entrance of the Church grounds
is 875 feet. In preparing a map of the area for this case, SLED agent
Wallace Scott also noted the distance by which a pedestrian might
travel along the public thoroughfare from the proposed location to
the Church. The distance from the building currently located on the
Petitioner's property to the entrance of the Church grounds is 550
feet. However, the Petitioner intends to remove the current structure
and build a new structure on the property, approximately 50 feet
further from the Church. The distance following the pedestrian route
along the roadway would then be approximately 600 feet to the
entrance of the Church grounds.
8. The playground referred to by the Protestants was recently an
overgrown field. Shortly before the Petitioner filed his application, the
Church cleared the field of debris and began using the field for
recreational purposes. After the field was cleared, it has been used by
the community in a limited nature. The Youth Minister of the Church
testified that a youth football league and baseball team have used the
field for practice. The field has no lighting for nighttime use.
9. Entrance to the field is gained by taking a path through a stand of
trees located on the Church property. The distance from the proposed
location following the public thoroughfare as a pedestrian might
travel is more than 650 feet. However, the field is actually located
directly adjacent to the property. The field is approximately 60 feet
from the structure currently upon the Petitioner's property and
approximately 100 feet from the proposed location.
10. The proposed location is on a four-lane highway in a rural area of
Berkeley County. The Petitioner will have "sound proof" insulation in
both the walls and ceiling to insure that the sound system does not
emit excessive noise outside of the proposed location.
11. The proposed location is suitable for an on-premise beer and wine
permit and a sale and consumption license only with the restrictions
set forth below.
STIPULATION
The Petitioner stipulated at the hearing that he would abide by the following restrictions if
granted an on-premise permit and a sale and consumption license:
1. The Petitioner will employ security officers to police the location to
insure that no loitering occurs outside of the location.
2. An eight-foot wooden privacy fence will be constructed between the
Church property and the proposed location.
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. §§ 6-9-320 and 61-5-50 (Supp. 1995) set forth the
requirements for the issuance of an on-premise beer and wine permit
and a sale and consumption license.
4. In addition to the requirements set forth above, a license for the sale
and consumption of alcoholic beverages must not be granted unless
the provisions of S.C. Code Ann. § 61-5-50 (Supp. 1995) is met.
That section requires that a mini-bottle license be granted only to a
bonafide business engaged in either the business of primarily and
substantially preparing and serving meals or furnishing lodging. The
principals and applicant must not only be of good moral character, but
furthermore, the business must also have a reputation for peace and
good order.
5. 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).
6. 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 beer and wine permit and a mini-bottle sale and
consumption license using broad, but not unbridled, discretion. Byers
v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705
(Ct. App. 1984).
7. 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).
8. 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 a permit or license
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).
9. S.C. Code Ann. § 61-9-340 (Supp. 1995) provides that upon
determination that the Petitioner meets the criteria for the issuance of
a permit or license, and has not misstated or concealed a fact in the
application, the South Carolina Department of Revenue and Taxation
must issue the permit or license after payment of the prescribed fee.
10. 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.
11. I conclude that the Petitioner meets all the statutory requirements for
holding a beer and wine permit and a mini-bottle sale and consumption
license at the proposed location. Accordingly, I conclude that the
proposed location is a proper one for granting the above permit and
license 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 and sale and consumption license
application of Michael H. Mims for the Party Animal's Pink Cadillac 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 shall construct a wooden privacy fence at least eight
feet in height between the Church's field and the proposed location.
As long as the Petitioner holds a beer and wine permit for this location
the fence shall be maintained in good condition to accomplish both the
limitation of movement between the properties and a good
appearance.
2. The Petitioner shall contract with a bonded security company or an
off-duty law enforcement officer, as permissible under the law, to have
a security guard on duty when he serves beer, wine or alcohol. The
security guard shall patrol the area surrounding the proposed location
to insure that the Petitioner's patrons do not loiter or create a public
disturbance in the parking lot.
3. 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 facie 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 and a sale and consumption license upon the payment of the required
fees and costs by the Petitioner.
AND IT IS SO ORDERED.
__________________________
Judge Ralph King Anderson, III
Administrative Law Judge
February 21,1996
Columbia, South Carolina |