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, David B. Richardson, seeks an on-premise beer and
wine permit for the Caribbean Deck. The Respondent made a Motion to be Excused which was
granted by my Order dated September 17, 1996. A hearing was held on November 6, 1996, in the
Administrative Law Judge Division.
The Permit requested by the Petitioner is granted 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 Caribbean Deck at 3111 First
Street South, Atlantic Beach, 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.
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 close to any church, school or playground.
6. The Protestant contends the proposed location is unsuitable for the following reasons:
a. The proposed location is too close to her home;
b. The proposed location is unstable and not properly zoned for this business;
c. The patrons of proposed location throw litter in her yard and use vulgar language that is
audible in her home; and
d. The proposed location plays loud music late at night.
7. The Petitioner has operated a water sports business at the proposed location from 1989 to May
1995. Upon opening the business he constructed a small shack. In 1992, he placed a mobile
home with an attached deck on the property. That structure was removed in 1994 and the current
building was built upon the property.
8. The Petitioner operates his business during the summer months. The business is open from
approximately 10:00 a.m. until 6:00 p.m. daily. However, during busy week-ends such as
Memorial Day week-end, his business stays open later.
9. The new location has resulted in an increase of litter being thrown upon the Protestant's
neighboring property. Furthermore, the Petitioner's patrons occasionally use vulgar language in
the parking area of the Caribbean Deck.
10. The Protestant purchased the neighboring property because she was told that it was a quiet
residential area. She was also told that the Petitioner's structure was temporary until a more
suitable location for his business could be found. However, the Protestant's assumptions were
incorrect. The location primarily consists of resort homes and businesses. The Atlantic Beach
Pavilion, which holds a beer and wine permit, is located 600 feet from the Caribbean Deck.
11. When the Protestant built her home next to the proposed location, the Petitioner's business
was already located upon that property. Basically, the only change that has occurred in his
business is the removal of a temporary structure and the building of a permanent structure.
However, the Petitioner now seeks to change his business from a resort rental business to a
business authorized to sell beer and wine. The proximity to the Petitioner's residence, the
behavior of the Petitioner's patrons in the past, and the noise emanating from the Petitioner's
structure mandates restriction of:
a. The Petitioner's hours of operation;
b. The litter deposited upon the Protestant's property; and
c. The reverberation of the Petitioner's music.
12. The proposed location is suitable for an on-premise beer and wine permit only with the
restrictions 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. 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 protestant objects to the issuance of
the permits is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d
Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
8. 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.
9. Land use decisions are primarily the responsibility of zoning authorities who exercise wide
discretion in decision making. See Bear Enterprises v. County of Greenville, ___ S.C. ___, 459
S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797
(1975).
10. I conclude that the Petitioner meets the statutory requirements for holding a beer and wine
permit at the proposed location. Accordingly, I conclude that the proposed location is a proper
one for granting the above permit with the following restrictions in the form of written
stipulations.
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 David B. Richardson for the
Caribbean Deck be granted upon the Petitioner signing a written Agreement with the South
Carolina Department of Revenue to adhere to the stipulations which are set forth below:
1. The Petitioner shall not sell beer or wine after 10:00 p.m.
2. The Petitioner or his employees shall prohibit loitering and the consumption of beer, wine or
liquor by the patron/customers in the parking lot area of the proposed location.
3. The Petitioner or his employees shall monitor the parking area to insure that his patrons do not
create a public disturbance.
4. The Petitioner or his employees shall pick up litter and debris from the ground of the adjacent
residence within four hours of the closing of the Caribbean Deck.
5. The Petitioner shall not allow excessive noise to emanate from the Caribbean Deck. Any noise
that is noticeably audible within any local residence after 10:00 p.m. with closed doors and
windows shall be considered excessive. Furthermore, for the purposes of this restriction, any
conviction for the violation of the county noise ordinance shall be considered prima facie evidence
of a violation of this provision.
IT IS FURTHER ORDERED that a violation of any of the above restrictions are considered a
violation against the permit and license and may result in a fine, suspension or revocation.
IT IS FURTHER ORDERED that the Department of Revenue issue an on-premise beer and
wine permit upon the payment of the required fee and cost by the Petitioner.
AND IT IS SO ORDERED.
___________________________
Ralph King Anderson, III
Administrative Law Judge
January 20, 1997
Columbia, South Carolina |
