ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
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, Nancy L. Foy, seeks an on-premise beer and wine permit and a club
sale and consumption license as a nonprofit organization for Country Crossroads. The Respondent
made a Motion to be Excused which was granted by my Order dated August 13, 1997. A hearing was
held on October 21, 1997 in the Administrative Law Judge Division.
The Permit and License requested by the Petitioner are 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 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 seeks an on-premise beer and wine permit and a club sale and
consumption license as a nonprofit organization for her location at 1029 Jonesville Highway,
Jonesville, South Carolina. Country Crossroads incorporated as a nonprofit organization under
South Carolina law on July 1, 1997.
3. The qualifications set forth in S. C. Code Ann. §§ 61-4-520 and 61-6-1820 (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 and sale and consumption license. Furthermore, the Petitioner's business has
a reputation for peace and good order.
5. The proposed location is not unreasonably close to any church, school or playground.
6. The Protestant contends that the Petitioner's location is not suitable because she has
encountered problems with the operation of the licensed business that preceded the Petitioner's
application. Those problems included intoxicated individuals entering her premises, individuals
urinating in her yard, fights and foul language in the parking area of the location, destruction of her
private property and excessive noise emanating from the building. She further argues that the
proposed location is not suitable because she operates a day care in her home which is 187 feet from
the business.
7. The proposed location was previously operated as a bar by the Protestant's father and
was being operated as a bar by a different individual when she purchased her home next to the
location. The location was permitted for the on-premise sale of beer and wine from approximately
1976 to 1980. Afterwards, the location was permitted for the on-premise sale of beer and wine from
approximately 1990 to 1994.
8. There has been no adverse change of circumstances to the location since it was
previously permitted. In fact, since the Petitioner opened her location, the problems exemplified by
the previous business have not occurred. The Petitioner is seeking a clientele that is much less likely
to encounter law enforcement problems. Furthermore, the change in the operation of the location and
the addition of sound proofing to the structure have improved the suitability of the location.
However, there is evidence that the noise level emanating from the location is too loud given the
quasi-residential nature of the area.
9. The proposed location is suitable for an on-premise beer and wine permit and a club
sale and consumption license as a nonprofit organization with the restrictions and stipulations set
forth below.
STIPULATION
The Petitioner stipulated at the hearing that she would abide by the following restrictions if
granted a permit and license:
1. The Petitioner will erect an eight-foot wooden fence that would run
the entire width of her property between Highways 9 and 18. This
fence would act as a buffer between the Petitioner's and the
Protestant's properties.
2. The Petitioner or her employees\members will police the parking area
of the proposed location at least every 30 minutes to insure that no
loitering occurs upon her premises.
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. 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. In addition to the requirements set forth above, a license for the sale and consumption
of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820
(Supp. 1996) are met. That section requires that a mini-bottle license be granted only to a bonafide
business engaged in either the business of primarily and substantially preparing and serving meals
or furnishing lodging. Furthermore, the principals and applicant must not only be of good moral
character, but furthermore, the business must also have a reputation for peace and good order.
5. S.C. Code Ann. 61-6-20 (6) (Supp. 1996) establishes that a nonprofit organization
is not open to the general public and only the members and guests of the club may consume alcoholic
beverages upon the premises.
6. S.C. Code Ann. §61-6-1820 (Supp. 1996) provides that a sale and consumption
license shall not be granted unless the proposed location meets the minimum distance requirements
from churches, schools, or playgrounds as set forth in S.C. Code Ann. §61-6-120 (Supp. 1996).
Section 61-6-120 requires that a location within a municipality licensed to sell liquor must be a
minimum of three hundred feet (300') from any church, school, or playground.
7. 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).
8. 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).
9. 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).
10. 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).
11. 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).
12. The Petitioner meets the statutory requirements for holding a beer and wine permit
and a club sale and consumption license as a nonprofit organization at the proposed location with
the above stipulations and the following restrictions.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premise beer and wine permit and a club sale and
consumption license as a nonprofit organization of Nancy L. Foy for Country Crossroads be granted
upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue
to adhere to the above stipulations and the restrictions that are set forth below:
1. As long as the Petitioner holds a permit or license for this location,
the fence between the Petitioner's and the Protestant's properties shall
be maintained in good condition to accomplish both the limitation of
movement between the properties and a good appearance.
2. The Petitioner shall not allow excessive noise to emanate from
Country Crossroads after 11:00 p.m. Any noise that is noticeably
audible within any local residence 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 stipulations or 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 a beer and wine
permit and a club sale and consumption license as a nonprofit organization upon the payment of the
required fees and costs by the Petitioner.
AND IT IS SO ORDERED.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
November 4, 1997
Columbia, South Carolina |
