ORDERS:
ORDER
STATEMENT OF THE CASE
This matter came before me 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
applications of Robert L. Colleton, Jr., Over Thirty Party Store, Inc. ("applicant") for an off-premise
beer and wine permit (AI 106092) and a retail liquor license (AI 106094) at Route 1, Box 811 and
Route 1, Box 811-A, Cottageville, Colleton County, South Carolina ("locations").
A hearing was held on March 27, 1996, at the Administrative Law Judge Division offices,
Columbia, South Carolina pursuant to a protest letter filed by G. Kaye Stokes ("protestant"). The
issues considered were the suitability of the proposed location and nature of the proposed business
activities. The protestant appeared at the hearing along with her husband, Marion Stokes, who
testified. Upon motion filed, the South Carolina Department of Revenue and Taxation
("Department") was excused from appearing at the hearing since it took no position on the issues
addressed in the protest.
Prior to the hearing, the applicant and protestant came to an agreement on restrictions to be
placed upon the permit and license, if granted. Those restrictions are addressed herein. Also at the
hearing, the Applicant moved to amend his on-premise beer and wine permit application to an off-premise beer and wine permit, which motion was granted. As a result, the protestant withdrew any
opposition to the issuance of the permit and license.
The Petitioner's applications for an off-premise beer and wine permit and retail liquor license
are granted with restrictions.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony, 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
and the protestant.
3. The applicant is seeking an off-premise beer and wine permit and a retail liquor license
for stores respectively located at Route 1, Box 811 and Route 1, Box 811-A, Cottageville, Colleton
County, South Carolina.
4. The applicant is over twenty-one (21) years of age.
5. Notice of the applications have appeared at least once a week for three (3) consecutive
weeks in The Press and Standard, Inc., a newspaper of general circulation in the local area where the
applicant proposes to engage in business.
6. The applicant, within two (2) years before the date of application, has not had a beer
and wine permit revoked nor within five (5) years before the date of application, has he had a liquor
license revoked.
7. The applicant is a legal resident and has been a legal resident of the United States and
South Carolina for at least thirty (30) days before the date of the application and has maintained his
principal place of abode in South Carolina for at least thirty (30) days before the date of application.
8. The applicant, his brother Marion Colleton and Peter Megget are Secretary/Treasurer,
President and Vice-President, respectively, of Over Thirty Party Store, Inc.
9. The applicant and all stockholders of the corporation Over Thirty Party Store, Inc.,
are of good moral character and repute.
10. Notice of the applications have been given by displaying a sign for a minimum of
fifteen (15) days at the site of the proposed locations.
11. The locations are situated in a rural residential area within the town limits of
Cottageville, South Carolina.
12. There are no churches, schools or playgrounds within 300 feet of the proposed
location for the retail liquor store.
13. The applicant intends to maintain a hands-on operation at these stores, being at the
proposed locations 90 percent of the time during business hours.
14. The hours of operation for the proposed off-premise beer and wine location will be
from 10:00 a.m. to 10:00 p.m., Monday through Saturday. The proposed retail liquor store will be
open from 10:00 a.m. to 7:00 p.m., Monday through Saturday.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. The South Carolina Administrative Law Judge Division is empowered to hear this case
pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976 Code of
Laws, as amended.
2. S.C. Code Ann. § 61-3-420 (Supp. 1995) provides that no person is eligible for a
license under this Chapter, Chapter 7 and Article 3 of Chapter 13, if he or the person who will have
actual control and management of the business proposed to be operated:
(1) is less than twenty-one years of age;
(2) is not a legal resident of the United States and has not been a resident of South Carolina
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;
(3) is not of good repute; or
(4) has had a license under this or another statute regulating the manufacture or sale of
alcoholic liquors which has been revoked within five years next proceeding the filing of the
applications.
3. S.C. Code Ann. § 61-3-440 (Supp. 1995) prohibits the issuance of any liquor license
provided for in Chapter 3, 7 and Article 3 of Chapter 13, if the place of business is within three
hundred feet (300') of any church, school or playground situated within a municipality or within five
hundred feet (500') of any church, school or playground situated outside of a municipality. Such
distances shall be computed by following the shortest route of ordinary pedestrian or vehicular travel
along the public thoroughfare from the nearest point of the grounds in use as part of such church,
school, or playground, which, as used herein, shall be defined as follows:
(1) "Church," an establishment, other than a private dwelling, where religious services are
usually conducted;
(2) "School," an establishment, other than a private dwelling, where the usual processes of
education are usually conducted; and
(3) "Playground," a place, other than grounds at a private dwelling, which is provided by the
public or members of a community for recreation.
4. 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 Sate 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.
5. 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.
6. S.C. Code Ann. § 61-3-425 (Supp. 1995) prohibits the issuance of a license under
Title 61 until the applicant presents to the Department a signed statement both from the Department
and the Internal Revenue Service showing the applicant does not owe the state or federal government
delinquent taxes, penalties or interest.
7. S.C. Code Regs. 7-55 (1976) incorporates verbatim the language of Regs. 7-11, with
the addition of an introductory paragraph.
8. No churches, schools or playgrounds are within the proscribed proximity to render
the proposed location unsuitable for a retail liquor license.
9. A liquor license may be denied if, in the opinion of the fact finder, the applicant is not
a suitable person to be licensed. Wall v. S.C. ABC Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977).
10. A license may not be issued pursuant to S.C. Code Ann. § 61-3-730 (Supp. 1995) if
the applicant is not a suitable person to be licensed; the place of business is not a suitable place; or
a sufficient number of licenses have already been issued in the state, municipality or community.
11. 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 Comm'n, 281 S.C. 566, 316 S.E.2d
705 (Ct. App. 1984).
12. Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact in deciding 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).
13. The determination of suitability of a location for issuance of a permit 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). The proximity of the location to
residences, churches, schools and playgrounds can be a proper ground by itself to deny a permit.
Moore v. S.C. Alcoholic Beverage Control Comm'n, 208 S.C. 167, 417 S.E.2d 555 (1992). Law
enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
The import of the proposed location upon traffic in the area can be a consideration. Palmer v. S.C.
Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). The character
of an entire area as rural versus commercial may be considered. Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973). The proximity of the location to children may be considered. Smith v. Pratt, 258
S.C. 504, 189 S.E.2d 301 (1972). It is relevant whether there are already similar existing businesses
in the area. Whether there is adequate and proper police protection for an intended location is also
a proper consideration. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). Further, any objections
to the permit grant must be based upon adequate factual support and not on opinion and conjecture.
14. 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 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. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
15. Having considered all factors as addressed above applicable to both the issuance of
a retail store liquor license and an off-premise beer and wine permit, and having given due weight to
the evidence in the record and the testimony, I conclude that the beer and wine permit and retail
liquor license should be granted with restrictions.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Robert L. Colleton Over Thirty Party Store, Inc. for an
off-premise beer and wine permit and a retail liquor license at Route 1, Box 811 and Route 1, Box
811-A, Cottageville, Colleton County, South Carolina be 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. There will be no outside speakers or loud noise emanating from the locations.
2. There will be no video machines at the locations.
3. The hours of operation at the off-premise beer and wine location will be from 10:00
a.m. to 10:00 p.m., Monday through Saturday. The retail liquor store will be open from 10:00 a.m.
to 7:00 p.m., Monday through Saturday.
4. Applicant will prevent loitering and the consumption of beer and wine and/or liquor
by anyone in the parking lot and exterior areas of the proposed locations.
5. Applicant will keep the outside area at the locations free from litter and trash.
6. The locations will conform to all county codes and ordinances.
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
beer and wine permit and retail liquor license upon payment of the required fees and costs by the
applicant.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
April 1, 1996 |
