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SC Administrative Law Court Decisions

Eugene M. Owings, d/b/a A&K Restaurant vs. SCDOR

South Carolina Department of Revenue

Eugene M. Owings, d/b/a A&K Restaurant

South Carolina Department of Revenue

For the Petitioner: Pro Se

For the Protestant: Pro Se




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, Eugene M. Owings, seeks an on and off-premise beer and wine permit for the A&K Restaurant. The Respondent made a Motion to be Excused which was granted by my Order dated September 30, 1997. A hearing was held on December 16, 1997, at the Administrative Law Judge Division.


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 opened the A&K Restaurant at Route 1 Box 30, Highway 221, South Carolina on July 1, 1997. He now seeks an on and off-premise beer and wine permit for his location. The restaurant is currently open from 6:00 a.m. to no later than 11:30 p.m. The Petitioner intends to operate the business solely as a restaurant and not as a bar.

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 Protestant contends that the proposed location is unsuitable because it is too close in proximity to both her and her son's homes. Furthermore, she testified that there are older people and young children who live in the surrounding community. The proposed location is in a rural area of McCormick County. The Protestant's home is the closest home to the proposed location. Her home is located 734 feet from the Petitioner's business. Her son no longer lives in the home he occupied near the location. However, his previous home was located 807 feet from the Petitioner's business. The evidence did not establish that the location is too close to the Protestant's home or any other individuals who live in the area.

6. The Protestant also contends that the proposed location is unsuitable because she has found beer cans in her yard and heard loud music on one occasion emanating from the proposed location. However, the evidence did not establish that the beer cans in the Protestant's yard are attributable to the Petitioner's business. Furthermore, the evidence did not establish that the music the Protestant heard was excessively loud. The Petitioner does not have any amplifier at his business. He does have a "juke box" though he keeps the volume "cut down" on the unit. The Protestant simply objected to the music coming from the Petitioner's business because it could be heard on the front porch of her home.

7. The Petitioner maintains Class III video poker machines upon the proposed premises.

8. The proposed location is suitable for the off-premise sale of beer and wine and the on-premise sale of beer and wine sole as a restaurant with the stipulation set forth below.


The Petitioner stipulated at the hearing that he would abide by the following restriction if granted a beer and wine permit:

The Petitioner will remove the Class III video poker machines from the proposed premises.


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 a 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 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).

8. 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).

9. 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.

10. The Petitioner meets the statutory requirements for holding an on and off-premise beer and wine permit at the proposed location with the following restrictions.


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

ORDERED that the on and off-premise beer and wine permit application of Eugene M. Owings for the A&K Restaurant be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue that he will adhere to the above stipulation.

IT IS FURTHER ORDERED that a violation of the above restriction be considered a violation against the permit and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue an on and off-premise beer and wine permit upon the payment of the required fee and cost by the Petitioner.



Ralph King Anderson, III

Administrative Law Judge

January 6, 1998

Columbia, South Carolina

Brown Bldg.






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