SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1996) and

S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) regarding a protested renewal application for an on-premises beer and wine permit for an establishment known as Big T Open Air Market, located at 3545 Charleston Highway, West Columbia, South Carolina. Permittee Thomas B. Bolton requested a contested case hearing upon the filing of written protests by nearby residents to the renewal of his permit. The South Carolina Department of Revenue (hereinafter referred to as "DOR") transmitted the case to the Administrative Law Judge Division for a hearing, which was held on February 4, 1997. Upon motion granted, DOR was excused from appearing at the hearing. At the conclusion of the hearing, Petitioner agreed to be bound by permit restrictions regarding parking at the licensed location. Petitioner and Protestants were ordered to submit stipulations for inclusion in a Final Order. Accordingly, a document signed by Petitioner and the Spokesperson for Protestants containing three stipulations entitled "Amendment and Agreement," was filed with the Court on February 24, 1997. Counsel for Petitioner has informed the Court that they have no objection to the stipulations. Based upon the consent of Petitioner, his counsel, and the Protestants, as well as the relevant and probative evidence submitted at the hearing and the applicable law, the permit renewal is granted with restrictions.

By a preponderance of the evidence, I find:

1. Petitioner seeks renewal of an on-premises beer and wine permit for a location at 3545 Charleston Highway, West Columbia, South Carolina, having filed a renewal application with DOR for permit BW #19434.
2. The proposed location is located at the intersection of Charleston Highway and Gardners Terrace Drive, in a mixed residential and commercial area of Lexington County near the Dixiana community.
3. The licensed location includes an open air market situated 25 feet to 35 feet from the intersection of Gardners Terrace Drive and Charleston Highway (U.S. Highway 321) and a shed used for turkey shoots situated on the rear of the 0.86-acre parcel.
4. Petitioner has operated the licensed location for approximately 17 years and has held a beer and wine permit for most of the period.
5. Gardners Terrace Drive is the entrance of the Whispering Oaks subdivision.
6. Because of the physical position of the open air market at the licensed location and the limited parking on the front and side of the open air market, motorists entering Charleston Highway from Gardners Terrace Drive have an obstructed view of oncoming traffic on Charleston Highway.
7. Protestants, all residents of the Whispering Oaks subdivision, object to the traffic hazards caused by patrons of the licensed location who park in a manner which obstructs a motorist's view of oncoming traffic.
8. Notice of the time, date, place, and subject matter of the hearing was given to all parties and protestants.
9. Upon motion granted, DOR was excused from appearance at and participation in the contested case hearing on the ground that it would have granted the permit and license but for the unanswered question of the suitability of the proposed location. DOR did not appear at the hearing nor express opposition to the renewal of the permit.
10. Subsequent to the contested case hearing, Petitioner and Protestants agreed to certain stipulations to be incorporated into the renewed permit. A document signed by Petitioner and the Spokesperson for Protestants containing three stipulations entitled "Amendment and Agreement," was filed with the Court on February 24, 1997. It states, in pertinent part:

[B]y Monday, June 9, 1997, Mr. Bolton will provide the following:

1) A New Building will be placed in the rear of the lot.

2) Destruction of the Turkey Shoot Shed and Old Business.

3) Provide a [sic] actual Entrance and Exit and provide a way of blocking traffic of entering Gardners Terr.

If all parties agree on this matter of the project they will sign below as an [sic] way of binding this agreement. If Mr. Bolton does not comply with this agreement his Beer/Wine license may be subject to revoke [sic].

1. Counsel for Petitioner informed the Court that they have no object ion to the stipulations.
2. Upon request and consent, the "Amendment and Agreement" filed with the Court on February 24, 1997, is attached hereto and incorporated into this Order as a settlement and compromise.
3. Based upon the consent of Petitioner, his counsel, and the Protestants, as well as the relevant and probative evidence submitted at the hearing and the applicable law, the permit renewal is granted with restrictions.

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1. The South Carolina Administrative Law Judge Division has subject matter jurisdiction in this matter pursuant to S.C. Code Ann. §§ 61-1-55 (Supp. 1996) and 1-23-310, et seq. (Supp. 1996).
2. S.C. Code Ann. § 61-9-320 (Supp. 1996) provides the criteria to be met before issuance or renewal of a beer and wine permit.
3. 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. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (S.C. App. 1984).

1. 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 operation 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).
2. 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.

1. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
2. The proposed location is suitable and proper, with the stipulated restrictions incorporated into the renewed permit.

1. Petitioner meets the statutory requirements for issuance of a beer and wine permit.

IT IS THEREFORE ORDERED that the on-premises beer and wine permit renewal applied for by Petitioner is granted, subject to the restrictions and stipulations contained in the attached "Amendment and Agreement" attached hereto.

AND IT IS SO ORDERED.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

March 14, 1997

Columbia, South Carolina

960530.wpd

February 24, 1997

RE; DOCKET # 96-ALJ-17-0530-CC

I Mr. Thomas B. Bolton, owner and operator of Big T Open Air Market located at the

corner Of Gardners Terrance and U.S. 321. This is a amendment to the oral order hearing

on February 4, 1997. Although a letter was received from Mr. O'Day, Mr. Bolton's

attorney which contained NO Proposal which was ordered and also received late by the community. So the community wishes took take action on this matter. Kimberly Sawyer,

Spokesperson for the Community has spoke with Mr. Bolton in detail several times

regarding this matter. Mr. Bolton has agreed to sign this agreement and wishes to get this

matter resolved. Mr. Bolton would like to build a new building off the road in the back of

this lot. The community agrees on this matter and will accept this as a stipulation for his

beer/wine permit. Although we know this will take some time to complete this project and

we as a community agree to give Mr. Bolton ample time to complete. We as a community

feel that this project should take no longer than three months to complete. So the set day

for the completion of this project should be completed by Monday, June 9, 1997. Mr.

Bolton will provide the following:

1.) A New Building will be placed in the rear of the

lot.

2.) Destruction of the Turkey Shoot Shed and Old

Business.

3.) Provide a actual Entrance and Exit and provide

a way of blocking traffic of entering Gardners Terr.

If all parties agree on this matter of the project they will sign below as an way of binding

this agreement. If Mr. Bolton does not comply with this agreement his Beer/Wine license

may be subject to revoke. X_____________________, Kimberly

Sawyer

X_____________________________, Thomas B. Bolton, Owner