SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1996) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1996) for a contested case hearing. The Petitioner, Mac L. LaBorde, seeks an on-premise beer and wine permit for Mac's Video and Grill. The Respondent made a Motion to be Excused which was granted by my Order dated August 6, 1997. A hearing was held on October 2, 1997, at the Administrative Law Judge Division.

The Permit requested by the Petitioner is approved with restrictions.

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 Petitioner and Protestant, 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 recently opened Mac's Video and Grill at 3786 Augusta Road, Bath, South Carolina. He now seeks an on-premise beer and wine permit for his location.

3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 1996) 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 has no criminal record and is of sufficient moral character to receive a beer and wine permit.

5. The Protestants object to the issuance of a permit to the Petitioner for the following reasons:

a) Granting the permit could create a traffic hazard in the area.

b) Granting the permit could result in inappropriate behavior by the Petitioner's patrons outside the location.

c) The proposed location is not suitable because it is situated in a quiet residential community.

d) The location is too close to Bath First Baptist Church and Bath Methodist Church.

6. The proposed location is in a predominately residential area. It is located 490 feet from Bath First Baptist Church and 504 feet from Bath Methodist Church. Furthermore, the Methodist Church holds "May Day" celebrations in the grass median, which the Church owns, approximately 400 feet from the location. Additionally, the Church allows children to play sports upon that property.

7. The proposed location has sufficient parking for fifteen (15) vehicles. However, the Petitioner testified that the property owner of the vacant lot next to his location has consented to allow his patrons to park upon that property.

8. No evidence was presented that the Petitioner maintains Class III video poker machines upon the proposed premises. However, the Department's file reflects the Petitioner maintains five "video machines" upon his property.

9. The location has no history of law enforcement problems. However, because this business is located in a predominately residential area and close to the previously discussed churches and playground, the location is suitable only for use as a family restaurant with the restrictions set forth below. Any other use of this location could change the residential character of the neighborhood.

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. 1996) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1996) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 1996) sets forth the requirements for the issuance of an on-premise beer and wine permit.

4. S.C. Code Ann. § 61-4-580 (Supp. 1996) provides in pertinent part that:

No holder of a permit authorizing the sale of beer or wine or a servant, agent, or employee of the permittee may knowingly commit any of the following acts upon the licensed premises covered by the holder's permit:

(3) permit gambling or games of chance;

(5) permit any act, the commission of which tends to create a public nuisance or which constitutes a crime under the laws of this State. . . .

5. 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).

6. 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).

7. 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).

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 a protestant objects to the issuance of a permit 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).

9. 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).

10. Permits and licenses issued by the state for sale of liquor, beer and wine are not rights or property but are privileges granted in the exercise of the state's police power to be used and enjoyed only while the restrictions and conditions governing them are complied with. 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 Comm'm, 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.

11. The Petitioner meets the statutory requirements for holding an on-premise beer and wine permit at the proposed location as a family restaurant with the following restrictions.

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the on-premise beer and wine permit application of Mac L. LaBorde for Mac's Video and Grill be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue to adhere to the restrictions that are set forth below:

1. The Petitioner shall establish a customer parking plan that is approved in writing by the South Carolina Department of Revenue and the individual owner of the vacant lot parking area.

2. The Petitioner shall obtain approval in writing from the South Carolina Department of Revenue of the video game machines operated in the Petitioner's location pursuant to S.C. Code Ann. § 12-21-2720 (Supp. 1996).

3. The Petitioner shall operate this location as a family restaurant.

IT IS FURTHER ORDERED that a violation of any of the above restrictions be 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.

______________________________________

Judge Ralph King Anderson, III

Administrative Law Judge

October 31, 1997

Columbia, South Carolina