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, William E. Applegate, III, seeks an on-premise beer and wine permit
for The Dog Pound. The Respondent made a Motion to be Excused which was granted by my Order
dated February 10, 1998. Afterwards, Protestant Trinity United Methodist Church made a Motion
to Intervene which was granted on April 8, 1998. A hearing was held on May 7, 1998, at the
Administrative Law Judge Division.
The Permit requested by the Petitioner is 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, Protestant, and South Carolina Department of Revenue.
2. The Petitioner seeks an on-premise beer and wine permit for The Dog Pound at 280
Meeting Street, Charleston, South Carolina.
3. The qualifications set forth in S. C. Code Ann. §61-4-520 (Supp. 1997) 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 proposed location is directly across from Trinity United Methodist Church.
However, the Church withdrew their opposition to the Petitioner's permit in view of the agreed-upon
restrictions set forth below.
6. The proposed location is not unreasonably close to any school or playground.
7. The Petitioner's proposed location is in a commercial area of the City of Charleston.
The location was permitted for the sale of beer and wine from June 1986 to February 1991.
8. With the restrictions set forth below, the evidence did not establish that this business
would change the integrity of the neighborhood or create an overall adverse impact on the
community. Therefore, the proposed location is suitable for the sale of beer and wine on-premise.
STIPULATION
The Petitioner stipulated at the hearing that he would abide by the following restrictions if
granted a beer and wine permit:
1. Beer or wine will be sold from the premises only between the
hours of 11:00 a.m. and 11:00 p.m., Monday through Saturday.
2. No beer or wine will be sold from the premises on Sunday.
3. No beer or wine will be sold to customers from the back of the
premises, but will only be sold from the customers' area, which faces
Meeting Street.
4. No signs advertising the sale of beer or wine will be displayed
on the Petitioner's windows or exterior of the proposed location.
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. 1997) 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. 1997) 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. 1997) 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. 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 this state for the sale of liquor, beer and wine are not
property rights. They are, rather, privileges granted in the exercise of the state's police power to be
used and enjoyed only so long as the holder complies with the restrictions and conditions governing
them. 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
Commission, 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-premise beer and
wine permit at the proposed location with the following restrictions.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the on-premise beer and wine permit application of William E. Applegate,
III, for The Dog Pound be granted upon the Petitioner signing a written Agreement with the South
Carolina Department of Revenue agreeing to the restrictions set forth in the above stipulations.
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 an on-premise beer
and wine permit upon the payment of the required fee and cost by the Petitioner.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
May 7, 1998
Columbia, South Carolina |
