ORDERS:
ORDER AND DECISION
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. (Supp. 1995) for a hearing on the application of Valley M. Henry.
Petitioner seeks an on-premises beer and wine permit (AI 107361) for a social club/game room
located at 904 East Myrtle Beach Highway, Scranton, South Carolina.
After timely notice to the parties and the Protestant, a hearing was held at the
Administrative Law Judge Division in Columbia, South Carolina. The Protestant of record, Don
B. Edgeworth, appeared at the hearing. The Protestant did not move to intervene as a party. The
issues considered at the hearing were: (1) the Petitioner's eligibility to hold a beer and wine permit;
(2) the suitability of the proposed business location; and, (3) the nature of the proposed business
activity. The on-premises beer and wine permit is hereby granted with specific restrictions.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks an on-premises beer and wine permit for a social club/game room
located at 904 East Myrtle Beach Highway, Scranton, South Carolina, which is located in Florence
County.
2. Petitioner's application to the South Carolina Department of Revenue and Taxation
("Department") was made a part of the record by reference.
3. The proposed location is situated in a rural area of Florence County, South
Carolina. The social club/game room is located directly off Highway 378. There are two
businesses licensed to sell beer and wine within one mile of the proposed location.
4. No church, school, or playground is within close proximity to the proposed
location.
5. The proposed location has been previously permitted to sell beer and wine on-premises under several different managements.
6. Petitioner operates and manages the proposed location as a social club/game room
which is open for business daily, but mainly on weekends as she and her husband both have jobs
independent of the social club/game room. Also, the Petitioner resides approximately one mile
from the proposed location.
7. Petitioner leases the proposed location from Mr. Jimmy Fryar.
8. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of the Petitioner which revealed no criminal convictions. Petitioner has not engaged
in acts or conduct that imply the absence of good moral character.
9. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained her principal residence in the state for at least thirty (30) days prior to
the date of making application for an on-premises beer and wine permit.
10. Petitioner has never held a beer and wine permit. Accordingly, Petitioner has not
had a permit or license for the sale of alcoholic beverages revoked within the past two years.
11. Notice of the application appeared in the Florence Morning News, a newspaper of
general circulation in the area of the proposed location, for three (3) consecutive weeks and
notice was posted at the proposed location for fifteen (15) days.
12. The Department did not oppose the application.
13. The Protestant testified in opposition to the application. The following problems
were associated with the location when it was previously permitted with an on-premises beer and
wine permit and cited by the Protestant: (1) excessive litter; (2) outside public consumption; and,
(3) excessive noise emanating from persons racing cars, breaking bottles, and firing guns on the
subject premises. However, Petitioner has been open for business since September of 1995 and
the Protestant has not experienced any disturbances because of this operation.
14. The Protestant's residence is located approximately 600 feet from the proposed
location.
15. The Protestant conceded that most, if not all, of his concerns have been satisfied
because of Petitioner's stipulations.
STIPULATIONS
1. Petitioner voluntarily agrees, as a condition to the issuance of a beer and wine
permit, that she will only open for business during the hours of 2:00 p.m. to 12:00 a.m. daily.
2. Petitioner voluntarily agrees, as a condition to the issuance of a beer and wine
permit, to be responsible for cleaning up all litter reasonably attributable to her business.
3. Petitioner voluntarily agrees, as a condition to the issuance of a beer and wine
permit, to take all precautions necessary to eliminate unreasonably loud noise emanating from the
proposed location and to patrol the immediate grounds around the premises to prevent
consumption of beer or wine outside the structural confines of the permitted premises.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) establishes the criteria for the issuance
of a beer and wine permit.
3. Although "proper location" is not statutorily defined, broad discretion is vested in
the Administrative Law Judge Division 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).
4. 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. Alcoholic Beverage
Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. Petitioner meets all of the criteria enacted by the South Carolina General Assembly
for the issuance of an on-premises beer and wine permit. The Protestant found the issuance of a
beer and wine permit to Petitioner objectionable mainly because of problems associated with the
location when it was previously permitted with an on-premises beer and wine permit. As to the
Protestant's concerns of excessive litter, outside public consumption of beer and wine, and loud
noise, Petitioner has agreed to be responsible for cleaning up all litter reasonably attributable to
her business. Also, Petitioner has agreed to take all precautions necessary to avoid unreasonably
loud noise and prevent outside consumption of beer and wine. Further, Petitioner has agreed to
open for business only between the hours of 2:00 p.m. and 12:00 a.m. These measures should
adequately prevent the aforementioned problems from reoccurring. Further, Petitioner is
instructed and encouraged to diligently adhere to the stipulations, so that her business may
harmoniously coexist with the Protestant and any other near-by residents. Also, Petitioner should
be mindful that beer and wine permits are neither contracts nor property rights, but are mere
permits issued or granted in the exercise of the State's police power, and are to be enjoyed only so
long as the restrictions and conditions governing their continuance are complied with. Feldman v.
S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
6. 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 operations 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), Schudel v. S.C. Alcoholic Beverage Control
Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
7. The proposed location is suitable as the issuance of an on-premises beer and wine
permit would not have an adverse impact on the community if the stipulations are adhered to by
the Petitioner. The proposed location and the nature of the business activity are suitable and
proper given the rural nature of the area in which the proposed location is situated, and the
existence of other businesses that sell beer and wine within a close proximity to the proposed
location.
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 the issuance of a
permit or license is protested is not a sufficient reason by itself to deny the application. See 45
Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that an on-premises beer and wine permit is hereby granted to Valley M.
Henry and stipulations 1, 2, and 3 shall be placed as restrictions upon Petitioner's on-premises beer
and wine permit consistent with 23 S.C. Code Ann. Regs. 7-88 (1976).
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an on-
premises beer and wine permit for a location at 904 East Myrtle Beach Highway, Scranton, South
Carolina upon payment of the required fee(s) and cost(s) by the Petitioner.
AND IT IS SO ORDERED.
____________________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
June 25, 1996
Columbia, South Carolina |
