ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division on the application of Regina
Shepherd, d/b/a My Place, for an on-premises beer and wine permit for a business located at 320
Addison Street, Johnston, South Carolina. After notice to the parties, a hearing was conducted on
January 26, 1998.
Based upon the evidence presented, the application for the beer and wine permit is
GRANTED. Any issues raised or presented in the proceedings or hearing of this case not
specifically addressed in this Order are deemed denied. ALJD Rule 29(B).
FINDINGS OF FACT
I make the following Findings of Fact, taking into account the burden on the parties to
establish their respective cases by a preponderance of the evidence and taking into consideration
the credibility of the witnesses:
The Petitioner, Regina Shepherd, applied for an on-premises beer and wine permit
(AI# 117071) on September 2, 1997, for the premises located at 320 Addison Street, Johnston,
South Carolina.
The Petitioner is over the age of twenty-one.
The Petitioner has legally resided in the United States and has held a principal place
of abode in South Carolina for more than 30 days prior to the date of application.
The Petitioner will be primarily responsible for operating the proposed location.
John Graham will assist the Petitioner in operating the proposed location.
The Petitioner has had no criminal convictions within the last ten years and is a
person of good moral character.
John Graham has no criminal record other than minor driving offenses and is a
person of good moral character.
The proposed location will operate as a pool hall open from 6:00 p.m. to 10:00 p.m.,
Monday through Thursday; 6:00 p.m. to 1:00 a.m., Friday; 6:00 p.m. to 12 a.m., Saturday; and,
closed Sunday.
My Place is located within the city limits of Johnston in Edgefield County.
C.O. Clark, Jr. and Ann A. Clark ("the Clarks") own certain real property, featuring
an agricultural warehouse ("Clark property"), located across Addison Street from the proposed
location.
The Clarks protested the application because they are concerned that patrons of My
Place will park on and litter their property, given the close proximity between their property and the
proposed location. These concerns are based upon activity occurring when the proposed location
was previously operated. The Clarks are further concerned with taking every precaution to prevent
the threat of fire at their warehouse, which is used primarily to store hay.
In order to prevent improper parking or trespassing on the Clarks' property, the
Petitioner offered to install "no parking" signs and to aid the police by towing improperly parked
cars. This offer was refused by the Clarks.
Since the major complaint involves the potential for parking and littering as a result
of the close proximity of the proposed location to the Clark property, the following restrictions
should be added to the permit: (a) the proposed location shall close no later than 10:00 p.m.,
Monday through Thursday; 1:00 a.m., Friday; and, 12 midnight, Saturday; (b) the management of
the proposed location shall patrol the parking areas regularly outside the location to ensure that
persons do not loiter, litter, or create any disturbances; (c) the management of the proposed location
shall take reasonable measures to inform patrons that parking on the Clark property is prohibited;
(d) the management of the proposed location shall pick up any trash on and around the Clark
property reasonably believed to be deposited by patrons; and, (e) the management of the proposed
location shall request police assistance as necessary to ensure that no patrons park on the Clark
property.
Notice of application appeared in The Citizen News on September 4, 11, and 18,
1997. Notice was also posted at the proposed location for the time period required.
But for the protest filed, the Department of Revenue would have issued the permit.
The applicant is suitable for issuance of an on-premises beer and wine permit.
The location, subject to restrictions, is suitable for issuance of an on-premises beer
and wine permit.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
The Administrative Law Judge Division holds subject-matter jurisdiction over
contested cases concerning the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260
(Supp. 1997). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (Rev.
1986 & Supp. 1997), and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp.
1997).
"A person engaging in the business of selling beer, ale, porter, wine, or a beverage
which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply
to the department for a permit to sell these beverages." S.C. Code Ann. § 61-4-500 (Supp. 1997).
S.C. Code Ann. § 61-4-520 (Supp. 1997), which sets forth the requirements for the
issuance of a beer and wine permit, provides as follows:
No permit authorizing the sale of beer or wine may be issued unless. . . .
(6) The location of the proposed place of business of the applicant is in the opinion
of the department a proper one.
(7) The department may consider, among other factors, as indications of unsuitable
location, the proximity to residences, schools, playgrounds and churches.
The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer
v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
As trier of fact, the Administrative Law Judge is authorized to decide the fitness or
suitability of the proposed business location for a permit to sell beer and wine using broad, but not
unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
Although "proper location" is not statutorily defined, broad discretion has been
vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast
Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve 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).
The granting of a beer and wine permit is the granting of a privilege which may be
restricted under the police powers of the State. Feldman v. South Carolina Tax Comm'n, 204 S.C.
49, 26 S.E.2d 22 (1943). As the tribunal authorized to grant the issuance of a permit is also
authorized, for cause, to revoke it, this tribunal is likewise authorized to place restrictions or
conditions on the permit. Id.
There has been no evidentiary showing that the present location under its current
management is unsuitable or that the issuance of an on-premises beer and wine permit would have
an adverse impact on the community, given the restrictions imposed.
The denial of a license or permit to an applicant on the ground of unsuitability of
location is without evidentiary support when relevant testimony of those opposing the requested
license or permit consists entirely of opinions, generalities, and conclusions not support by facts.
Taylor v. Lewis, supra; Smith v. Pratt, supra.
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 the permit was protested does
not serve as a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating
Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).
The applicants meet the statutory requirements for the issuance of an on-premises
beer and wine permit.
The location is suitable for issuance of an on-premises beer and wine permit with
the aforementioned restrictions.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the application of Regina Shepherd, d/b/a My Place, for an on-premises
beer and wine permit for a business located at 320 Addison Street, Johnston, South Carolina is
GRANTED, subject to the following restrictions:
(a) the proposed location shall close no later than 10:00 p.m., Monday through Thursday;
1:00 a.m., Friday; and, 12 midnight, Saturday;
(b) the management of the proposed location shall patrol the area around the proposed
location to ensure that its patrons do not loiter or litter;
(c) the management of the proposed location shall take reasonable measures to inform
patrons that parking on the Clark property is prohibited;
(d) the management of the proposed location shall pick up any trash on and around the
Clark property reasonably believed to be deposited by patrons; and,
(e) the management of the proposed location shall request police assistance as necessary to
ensure that no patrons park on Clark property.
AND IT IS SO ORDERED.
__________________________________
ALISON RENEE LEE
Administrative Law Judge
January 30, 1998
Columbia, South Carolina |
