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:
Lila R. Gryner, d/b/a Lila's vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Lila R. Gryner, d/b/a Lila's

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0018-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For the Respondent/ South Carolina Department of Revenue and Taxation: Arlene D. Hand, Esquire

For the Protestants: Reverend Larry N. Goff, Spokesperson
 

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. (Rev. 1986 and Supp. 1995) for a hearing pursuant to the application of Lila R. Gryner, d/b/a Lila's, (applicant) for an on-premise beer and wine permit (AI 105940) at 1680 Highway 501 West, Gallivant's Ferry, Horry County, South Carolina (location).

A hearing was held on February 26, 1996, at the Administrative Law Judge Division Offices, Columbia, South Carolina. Two ministers ant two trustees representing The Worship Center appeared at the hearing, protesting the application request. The South Carolina Department of Revenue and Taxation ("Department") was also represented at the hearing. The position of the Department was that it denied the application based upon the protests of interested persons. Otherwise, the application would have been granted.

The issues considered were: 1) the suitability of the proposed location, and 2) the nature of the proposed business activity.

Petitioner's application request is granted with restrictions.





EVIDENCE

Exhibits

Without objection, the certified portions of the Department's file (AI 105601) sent to and received by the Administrative Law Judge Division were made a part of the record in this case.

FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties, including the protestant.

3. The applicant is seeking an on-premise beer and wine permit for a tavern to be located at 1680 Highway 501 West, Gallivant's Ferry, Horry County, South Carolina.

4. The applicant is 52 years of age.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Sun News, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

6. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

7. The applicant has been a legal resident of South Carolina for over thirty days and has maintained her principal place of abode in South Carolina for over thirty days.

8. The applicant is of good moral character. She has never held a liquor license or beer and wine permit nor had one revoked or suspended. She has no criminal record.

9. Applicant has a signed rental/lease agreement for the location and intends to have 1 juke box when the tavern is operational. No live bands will perform at the location.

10. If this permit is granted, applicant intends to serve food at the location also.

11. Dorothy Hays currently operates a bar at the location and holds an on-premise beer and wine permit.

12. The location has for several decades or longer been operational as a bar or tavern with management holding a beer and wine permit.

13. Several members of applicant's family intend to assist her in operating the bar. However, she intends to be a "hands-on" manager working there daily.

14. The location consists of a building and two to three acres in a rural area of Horry County. It fronts on Highway 501 which is a four-lane road. There are parking areas sufficient to accommodate parking of twenty or more vehicles at the location.

15. The proposed hours of operation at the bar are 10:00 a.m. to 2:00 a.m., Monday through Friday and 10:00 a.m. to 12:00 a.m. on Saturday.

16. The location is not within the municipal limits of any town or city. However, it's closer to the town of Aynor than to the City of Conway.

17. Police protection in the vicinity of the location is furnished by the Sheriff's Office of Horry County which is located in Conway, South Carolina

18. There are several residences in the general locale. However, none of them, excepting the protestant Johnny Johnson, a Trustee at the Worship Center who lives in a mobile home behind the church, objected to the grant of the application.

19. No playgrounds or schools are in the general vicinity or locale of the location.

20. Immediately across the highway from the location is a patch of woods. The location as measured by a South Carolina Law Enforcement (SLED) agent, is approximately 287 feet in distance along the highway from The Worship Center.

21. The Worship Center is a church, consisting of approximately 18 members.

22. The Worship Center began holding church services at their present location in 1992.

23. Several members of The Worship Center testified, including the associate pastor and a trustee. Their concerns are about loud noise, fights and disturbances at the location.

24. Further, the church is concerned that customers patronizing the location may park on their property, impeding the free flow of traffic to and from the church parking areas.

25. Also, the position of The Worship Center is that the sale and consumption of beer and wine is morally wrong.







CONCLUSIONS OF LAW

Based upon the foregoing 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 a 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 a beer and wine permit which provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

1. The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.

2. The retail applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.

3. The wholesale applicant is a legal resident of the United States and has been a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4. The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

5. The applicant is twenty-one years of age or older.

6. The location of the proposed place of business of the applicant is in the opinion of the department a proper one. The department may consider, among other factors, as indications of unsuitable location the proximity to residences, schools, playgrounds and churches.

7. Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business.

8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.

4. S.C. Code Ann. § 61-3-440 (Supp. 1995) states that the Department shall not issue certain licenses to a place of business within a certain distance of a church, school or playground; however, locations for which beer and wine permits are requested are not subject to those specific restrictions.

5. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). 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, 316 S.E. 2d 705 (S.C. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered. Although "proper location" is not statutorily defined, broad discretion is vested in this tribunal in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. William G. Byers v. South Carolina ABC Commission, 305 S.C. 243, 407 S.E. 2d 653 (1991).

6. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to the granting of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 198 S.E. 2d 801 (1973). In this instance, there was no specific testimony or credible testimony that the granting of the requested permit to the applicant would have a detrimental impact on the community, or place any undue burdens on local law enforcement. Factors which weigh in favor of granting the permit are:

1. Applicant has no prior history of any criminal violations of any kind.

2. Testimony presented at the hearing was that there were no incidents of fights or arrests at the location during the last year.

3. No evidence was presented of any history of ABC violations at the location.

4. No credible evidence was provided to this tribunal of any increased traffic as a result of the sale of on-premise consumption of beer and wine presently at the location.

5. The four-lane highway in front of the location will alleviate any potential traffic congestion problems and traffic overflow in The Worship Center's parking areas.

6. Applicant and her family members intend to be hands-on proprietors, participating in the tavern's operation and management on a daily basis.

7. There was no credible testimony that law enforcement could not properly police the location.

8. The Department did not object to the permit licensure.

9. The location had previously been permitted for many years.

7. 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. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

8. S.C. Code Ann. §61-9-340 (Supp. 1995) states that upon a determination that an applicant meets the criteria set forth and has not misstated or concealed a fact in the application, the Department must issue the permit after payment of the prescribed fee.

9. 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.

10. Given the history of this location having a permit for many years with no evidence of any violations and considering the testimony of all the witnesses, I conclude that the applicant has met her burden of proof in showing that she meets all of the statutory requirements for holding an on-premise beer and wine permit, that the proposed location is a suitable and proper one, and accordingly, the beer and wine permit should be granted.





ORDER

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

ORDERED that the application of Lila R. Gryner, d/b/a Lila's for an on-premise beer and wine permit for the premises located at 1680 Highway 501 West, Gallivant's Ferry, Horry County, South Carolina, is granted with the following restrictions, upon the applicant signing a written agreement to be filed with the South Carolina Department of Revenue and Taxation to adhere to the stipulations set forth below:

1. No advertisement of beer or wine may be physically located outside the store building at the location. However, advertisements and/or signs may be located inside the building, including those which are visible from the outside.

2. Applicant and/or her employees and agents will prevent loitering and the consumption of beer and/or wine by anyone in the parking lot and exterior areas of the proposed location.

3. Applicant and/or her employees and agents will prevent any parking by her customers of their vehicles or trucks in the parking areas of The Worship Center.

4. Applicant will ensure that no loud noise emanates from the location. There will be no live music or bands nor any exterior speakers.

IT IS FURTHER ORDERED that a violation of any one of the above conditions is considered a violation against the permit and may result in a fine, suspension, or revocation.

IT IS FURTHER ORDERED that the Department of Revenue and Taxation shall issue the permit upon payment of the required fees and costs by the applicants.

AND IT IS SO ORDERED.



______________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

February 27, 1996


Brown Bldg.

 

 

 

 

 

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