ORDERS:
FINAL ORDER AND 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. 1997) for a contested
case hearing. The Petitioner, David C. Kingsmore, seeks an on-premise beer and wine permit for
Kingsmore. The Respondent made a Motion to be Excused which was granted by my Order dated April
16, 1998. A hearing was held on June 4, 1998, at the Administrative Law Judge Division.
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 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.
3. The proposed location is not unreasonably close to any church, school or playground.
4. The Petitioner seeks an on-premise beer and wine permit for the Kingsmore at 1471
C.R. Koon Highway, Newberry, South Carolina. The Petitioner's proposed location is a cinder block
building upon which a 40-foot by 50-foot building has been added. He intends to operate this location
as a sports bar/grill.
5. The property is owned by "Mr. Holloman" and is leased to the Petitioner's brother, Rex
Kingsmore. Rex Kingsmore, who will sublease this location to the Petitioner, was previously convicted
of distribution of marijuana in 1988.
6. Deputy Bozard appeared on behalf of the Newberry Sheriff's Office to protest this
permit. Deputy Bozard questioned the Petitioner's moral character to hold a permit. Specifically, while
enlisted in the Air Force, the Petitioner was charged with larceny of the Government's property.
Though there is no evidence he was convicted of that offense, Fifty Thousand ($50,000.00) Dollars of
property that belonged to Shaw Air Force Base was found upon the property of his mother and his
brother, Rex Kingsmore, in December 1991.
The Petitioner argues that he has no criminal record and, in fact, was honorably discharged from
the Air Force. Interestingly, however, his discharge occurred five months after the above discovery
of the Air Force's property. Furthermore, he was told by his commanding officer that he could not
reapply.
This evidence raises concerns about the Petitioner's moral character. However, the
circumstantial evidence that the property was found upon the property of the Petitioner's mother and
brother, though it certainly leads to the speculation that the Petitioner stole the property, is not sufficient
proof of that crime, by itself. Therefore, the evidence did not establish that the Petitioner's moral
character is insufficient to receive a beer and wine permit.
7. Deputy Bozard also contends that the location is unsuitable because of the burden that
will be placed upon the law enforcement of Newberry County. However, no evidence was offered to
substantiate that contention.
8. The Protestant Reverend Pierstorff contends that the proposed location is unsuitable
because:
a. There is a proliferation of businesses that sell beer and
wine in the area;
b. It could create a potential traffic hazard; and
c. The Petitioner intends to have a business at this location
which will cater to young people.
The evidence does not establish that this particular area is unsuitable or that this location presents a
traffic hazard. Furthermore, the Petitioner does intend to have a business at this location which caters
to underage people. However, the Petitioner testified that the business for the individuals under the age
of twenty-one, will be in a "separate building." If the underage individuals are in a separate building
and are not allowed any access, whatsoever, to this proposed bar, the location is suitable with the
restriction set forth below.
9. The proposed location is suitable for the sale of beer and wine on-premise only with the
restrictions and stipulations set forth below.
STIPULATION
The Petitioner stipulated at the hearing that he would abide by the following restrictions if
granted a beer and wine permit:
He will remove the video poker machines from the location before he
begins selling beer or wine upon the 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. 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 David C. Kingsmore for
Kingsmore be granted upon the Petitioner signing a written Agreement with the South Carolina
Department of Revenue agreeing to the above stipulation and the restrictions that are set forth below:
1. The Petitioner shall prohibit Rex Kingsmore from being involved in any
manner in the operation of this location or as an employee, agent, or
servant of the Petitioner's business.
2. The Petitioner or his employees shall monitor the parking area to insure
that no minors loiter in the parking area of the location and that no public
disturbance is created. The Petitioner shall have a specific employee
assigned to constantly monitor the parking area while beer or wine is
served or sold.
3. The Petitioner shall operate the business for underage individuals in a
separate building with an employee posted at the entrance to the bar area
to insure that a minor does not enter where beer and wine are served.
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 costs by the Petitioner.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
August 4, 1998
Columbia, South Carolina |
