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, Lena Perry, seeks both an on and off-premise beer and
wine permit for the Wiggins Cafe. A hearing was held on January 10, 1996, at the office of
Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The Permit requested by the Applicant is denied.
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. 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.
2. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp.
1994) 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.
3. The Petitioner seeks both an on and off-premise beer and wine permit
for Wiggins Cafe located at 785 Edding Point Road, Beaufort, South
Carolina. The Petitioner plans to lease the Cafe and does not live in
the area of the store's location. The location is in a primarily
residential area.
4. The Petitioner seeks these beer and wine permits for the Cafe and the
open field nearby. She does not intend to run the location as a Cafe.
Rather, the location will be an extension of her day care business for
the children to have recreation.
5. The Petitioner also intends to sublease the location occasionally to
other individuals for events such as birthday parties, family reunions
and anniversaries. Additionally, she plans to hold carnivals and fashion
shows at the location.
6. The proposed location is unsuitable for a beer and wine permit
because of its proximity to residences, the frequent presence of
children, the unacceptable burden upon law enforcement to police
such events at this location, and the resulting negative impact that
would occur upon the local community.
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 beer and wine permits.
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. Permits and licenses issued by the state for sale of liquor, beer and
wine are not rights or property but are, rather, privileges granted in
the exercise of the state's police power to be used and enjoyed only so
long as the restrictions and conditions governing them is followed.
Feldman v. S.C. Tax Comm., 203 S.C. 49, 26 S.E.2d 22 (1943).
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED AND ADJUDGED that the application of Lena Perry for these beer and wine
permits be denied.
AND IT IS SO ORDERED.
__________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
February 9, 1996 |
