SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and

S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1995) upon a renewal application for an off-premises beer and wine permit, Permit Number BG644115, for a location at 488 W. Boyce Street, Manning, South Carolina, by Harmon B. Sprott, III, Sprott Oil Company, Inc. d/b/a In and Out Express, filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A contested case hearing began on June 19, 1996, but is continued to allow all parties an opportunity to present arguments on a pending motion and other related legal issues.

Petitioner seeks removal of a restriction placed on his current permit which prohibits outside beer advertisement on the licensed premises. The restriction was placed on the permit when initially issued pursuant to Order of Administrative Law Judge Ralph K. Anderson, III, dated April 20, 1995, following a hearing in Harmon B. Sprott, III d/b/a In & Out Express v. S.C. Department of Revenue and Taxation, Docket No. 95-ALJ-17-0075-CC. Rev. Dennis Jeffcoat opposes the removal of the restriction. Rev. Jeffcoat, a protestant in the first case, was admitted as an intervenor in the present case. Upon motion granted, DOR was excused from participation in each of the proceedings.

At the June 19, 1996 hearing in the present case, the parties presented evidence on whether there has been some material change with respect to the location since the advertising restriction was imposed by Judge Anderson and the potential impact of the removal of the restriction. At the hearing, the Court raised several issues regarding collateral estoppel and res judicata and the applicability of a specific statute relating to beer signs. Petitioner moved under Rule 60, SCRCP, to alter Judge Anderson's Order in the first case because of a mistake.

Administrative notice is taken of Judge Anderson's April 20, 1995 Order (incorporated herein by reference in its entirety), which contains the following restriction:

The applicant shall have no exterior advertisements or

advertisements which are visible from the outside of his

store advertising beer, wine or any alcoholic beverage.

S.C. Code Ann. § 61-1-90 (Supp. 1995), effective July 1, 1993, provides, however:

Neither the South Carolina Department of Revenue

and Taxation nor the South Carolina Law Enforcement

Division shall have the authority to regulate the size, type,

or number of beer signs displayed on the premises of any

retail or wholesale beer dealer.

Under the doctrine of collateral estoppel, when an issue of fact or law is actually litigated and determined by a valid and final decision of an administrative tribunal, and that determination is essential to the decision, the determination is conclusive in a subsequent matter between the parties, whether on the same or different claim. Carman v. S.C. ABC Commission, ___ S.C. ___, 451 S.E.2d 383 (1994); St. Philip's Episcopal Church v. S.C. ABC Commission, 285 S.C. 335, 329 S.E.2d 454 (Ct. App. 1985). Petitioner had a full and fair opportunity to litigate whether a permit should be granted, and if so, with what restrictions, if any, at the hearing before Judge Anderson. He chose not to appeal from Judge Anderson's decision to grant the permit with restrictions.

When a location has previously been found to be unsuitable, an applicant must affirmatively show that some material change with respect to the location has occurred since the previous denial. S.C. Code Ann. Regs. 7-3, 7-19.1, 7-30, and 7-96 (1976 and Supp. 1995). The same standard should be applied to license and permits which have been previously granted with restrictions, when an applicant seeks a new permit free of those restrictions. See Teresa Rose, d/b/a Brandi's Restaurant v. S.C. Dept. of Revenue and Taxation, Docket No.

94-ALJ-17-0768-CC, Order dated February 21, 1996.

The parties appearing at the June 19, 1996 hearing were not prepared to adequately address the application of S.C. Code Ann. § 61-1-90 (Supp. 1995) to the present renewal application, as affected by collateral estoppel, and DOR did not appear at the hearing. A continuation of the hearing is necessary to afford all parties time to research the law and present their positions in brief and/or oral arguments.

IT IS THEREFORE ORDERED that this contested case is continued until July 10, 1996, at 2:30 p.m. at which time the parties, including DOR, shall appear at the Administrative Law Judge Division, Edgar A. Brown Building, Second Floor, 1205 Pendleton Street, Columbia, South Carolina, for a hearing to present arguments and/or file briefs on the following issues:

1. The applicability of S.C. Code Ann. § 61-1-90 (Supp. 1995)

to the present case;

2. The effect of collateral estoppel or res judicata in the present

matter upon the findings, conclusions, and restrictions contained

in Judge Anderson's Order dated April 20, 1995, in the case of

Harmon B. Sprott, III d/b/a In & Out Express v. S.C. Department

of Revenue and Taxation, Docket No. 95-ALJ-17-0075-CC;

3. Petitioner's Motion to Amend or Alter Judge Anderson's Order

dated April 20, 1995, in the case of Harmon B. Sprott, III d/b/a

In & Out Express v. S.C. Department of Revenue and Taxation,

Docket No. 95-ALJ-17-0075-CC, pursuant to Rule 60, SCRCP.

AND IT IS SO ORDERED.

_______________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

June 21, 1996

Columbia, South Carolina