ORDERS:
FINAL 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, Sherry L. Melton, seeks an on-premise beer and wine permit
for the Express Mart #10. The Respondent made a Motion to be Excused which was granted by my
Order dated August 29, 1996. A hearing was held on October 10, 1996 in the Administrative Law
Judge Division. No one appeared on behalf of the Protestant.
The Permit requested by the Petitioner is approved with restrictions.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. The Petitioner seeks an on-premise beer and wine permit for the
Airport Grocery at Route 3, Box 270 on Highway #9, Cheraw, South
Carolina.
2. Notice of the time, date, place and subject matter of the hearing was
given to the Petitioner, Protestants, and South Carolina Department
of Revenue and Taxation.
3. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp.
1995) concerning the residency and age of the Petitioner are properly
established. Furthermore, the Petitioner has not had a permit or
license revoked within the last two years and notice of the application
was lawfully posted both at the location and in a newspaper of
general circulation.
4. The Petitioner is of sufficient moral character to receive a beer and
wine permit.
5. The proposed location is not excessively close to any church, school
or playground.
6. Daniel J. Sellers, who previously held a permit for this location and
currently owns the building of the proposed location, has been cited
for several violations of the Alcoholic Beverage Control Act.
7. The proposed location is suitable for the sale of beer and wine on-premise with the stipulation set forth below.
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 determining the fitness or suitability of
a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281
S.E.2d 118 (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 this state for the sale of liquor, beer
and wine are not property rights. They are, rather, privileges granted
in the exercise of the state's police power to be used and enjoyed only
so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Judge, as the tribunal
authorized to grant the issuance of a permit, may likewise place
restrictions or conditions on the permit or license. See, Feldman v.
S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
Furthermore, 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.
8. The Petitioner meets all the statutory requirements for holding a beer
and wine permit at the proposed location with the stipulation set forth
below.
STIPULATION
The Petitioner stipulated at the hearing that she would abide by the following restriction if
granted an on-premise permit:
The Petitioner shall prohibit Daniel J. Sellers from being an employee,
agent or servant of this business.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premise beer and wine permit application of Sherry L. Melton for the
be granted upon the Petitioner signing a written Agreement with the South Carolina Department of
Revenue and Taxation to adhere to the above stipulation.
IT IS FURTHER ORDERED that a violation of the above stipulation 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 issue this on-premise beer and wine permit upon the payment of the required fee and cost by the Petitioner.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
October 11, 1996
Columbia, South Carolina |
