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,
Chris M. Ward, seeks an on-premise beer and wine permit for The Lake Break. A hearing was held on October 2, 1996,
at the office of Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The application requested by the Petitioner is denied.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility,
considering 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.
2. The Petitioner seeks an on-premise beer and wine permit for The Lake Break at Route 1 Box
499X, Waterloo, South Carolina.
3. The Petitioner seeks this on-premise beer and wine permit in a quiet, rural residential area.
He proposes to operate a business with video poker machines and billiard tables. In close
proximity to the proposed location is a store which has an off-premise beer and wine permit.
However, in 1991 the ABC Commission denied a retail liquor license in this area. The
Commission noted in its decision the rural residential nature of the community and that the
Sheriff's office did not have adequate manpower to provide the protection commensurate with
the security needed for a liquor store.
4. The Sheriff's office could provide the area with adequate law enforcement. However, currently
the resources of the Sheriff's office are focused on other areas of the county. Locations with
on-premise permit require more law enforcement than locations with only an off-premise
permit. Therefore, permitting the proposed location for an on-premise beer and wine permit
would probably require a shift in the current law enforcement strategy of the Sheriff's office.
Furthermore, the proposed location is located at an intersection on a curve in the highway.
5. The proposed location is unsuitable for an on-premise beer and wine permit because of its
proximity to nearby residences, the unreasonable burden upon law enforcement, and the
potential for increased traffic hazards at what already is a dangerous intersection.
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 an
on-premise beer and wine permit.
4. 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).
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 if the restrictions and conditions governing them are followed. Feldman v. S.C. Tax Comm'm, 203 S.C. 49, 26 S.E.2d 22 (1943).
8. In considering the suitability of a location, it is relevant to consider the previous history of
the location and to determine whether the testimony in opposition to the granting of a
permit is based on opinions, generalities and conclusions or whether the case is supported
by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C.
168, 198 S.E.2d 801 (1973).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED AND ADJUDGED that the application of Chris M. Ward for an on-premise beer and wine permit is
denied.
________________________________
Ralph King Anderson, III
Administrative Law Judge
October 29, 1996
Columbia, South Carolina |
