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, Danny R. Land, seeks an on-premise beer and wine permit
for Todd's Grocery. The Respondent made a Motion to be Excused which was granted by my Order
dated April 16, 1998. A hearing was held May 28, 1997 at the Administrative Law Judge Division.
The Permit requested by the Petitioner is denied.
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 and Taxation.
2. The Petitioner seeks an on-premise beer and wine permit for Todd's Grocery at
Highway 81, Mount Carmel, South Carolina.
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 proposed location is not unreasonably close to any church, school or playground.
6. The Protestant contends that the Petitioner's location as currently operated is
unsuitable for a beer and wine permit because the nature of the store has changed. The proposed
location was previously a "general country grocery store." That business held a permit for the sale
of beer and wine for many years. However, the proposed location currently operates as a bar with
pool tables and video poker machines. The Petitioner testified that he will not change the current
nature of his business if granted a beer and wine permit. Specifically, he will not remove the video
poker machines from the proposed location. The Petitioner simply objects to governmental
interference with his operation of the proposed location. In fact, while operating this location during
the pendency of this case, the Petitioner has already been cited for selling beer to a minor. The
Petitioner admitted that beer was sold to a minor at his location, but argues that his employee, and
not himself, is responsible for that violation.
7. The Protestant also objects that the proposed location is not suitable because the
unruly behavior of the Petitioner's patrons will be exacerbated by the granting of a beer and wine
permit. Recently, there have been intoxicated individuals loitering outside the proposed location.
Furthermore, the Petitioner's patrons have been playing loud music, drinking beer and urinating
outside of the location.
8. This proposed location is in a small, rural town of this State. Furthermore, the
proposed location is on the touring route designated by the State as the Heritage Corridor.
Specifically, the roadway traveling through Mount Carmel is designated as part of the Savannah
River Scenic Highway and is recognized by the U.S. Congress as a national heritage area. The
scenery of the Petitioner's patrons drinking and urinating outside of this location is not conducive
to either the State's goals in this area or the nature of the community. Therefore, I find that the
proposed location is unsuitable for a beer and wine permit and a sale and consumption license
because of the operation of video poker machines that would occur after the location is permitted
and the resulting negative impact that would occur upon the local community and the State.
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. 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, wine
or alcohol 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. Although "proper location" is not statutorily defined, the Administrative Law Judge
Division is vested, as the trier of fact, with the authority to determine the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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). In determining the suitability of a location, it is proper for this Court to
consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). See also Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
Furthermore, "[a] liquor license or permit may properly be refused on the ground that the location
of the establishment would adversely affect the public interest, that the nature of the neighborhood
and of the premises is such that the establishment would be detrimental to the welfare . . . of the
inhabitants, or that the manner of conducting the establishment would not be conducive to the
general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).
7. In Reyelt v. S.C. Tax Comm'n, C/A No. 6:93-1491-3 and C/A No. 6:93-1493-3
(D.S.C. 1993), the Court held that video poker is a regulated form of gambling in South Carolina.
Black's Law Dictionary defines gambling as "[m]aking a bet." Such occurs when there is a chance
for profit if a player is skillful and lucky. A play for value against an uncertain event in hope of
gaining something of value. It involves, not only chance, but a hope of gaining beyond the amount
played." Black's Law Dictionary 679 (6th ed. 1990) (citations omitted). I find that the play of video
poker machines for the opportunity of payouts pursuant to S.C. Code Ann. § 12-21-2791 (Supp.
1996) is gambling.
8. "A court can take judicial notice of its own records, files, and proceedings for all
proper purposes including facts established in its records." Freeman v. McBee, 280 S.C. 490, 313
S.E.2d 325 (Ct. App. 1984). I therefore find that the previous findings of fact and conclusions of law
made in Vaughn v. South Carolina Department of Revenue, Docket No. 97-ALJ-17-0333-CC are
relevant for consideration in this case. In Vaughn I issued an Order that the Department provide the
following information:
a. The Department must state its position whether the Petitioner's
location is still qualified and proper to receive an on-premise beer and
wine permit in light of the new facts set forth above -- that the
Petitioner is operating and intends to continue to operate Class III
video poker machines upon his premises.
b. The Department shall state whether the Department issues beer and
wine permits to individuals that are currently operating with Class III
video poker machine licenses pursuant to the provisions of S.C. Code
Ann. §12-21-2720(A)(3) (Supp. 1995) upon the premises and who
plan to continue to do so after obtaining the permit. See Weaver,
supra.
Rather than provide that information, the Department simply sent a copy of its pleadings filed in
Circuit Court in the case of South Carolina Department of Revenue, et al. v. South Carolina Coin
Operators Association, et al., Docket No. 97-CP-40-3611. In those pleadings the Department
asserted that S.C. Code Ann. § 61-4-580 (Supp. 1996) "prohibits the Department from issuing
licenses or permits for the sale of beer and wine at locations which operate Class III video game
machines. . . ."
9. S.C. Code Ann. § 61-4-580 (Supp. 1996) provides in pertinent part that:
No holder of a permit authorizing the sale of beer or wine or a servant, agent, or
employee of the permittee may knowingly commit any of the following acts upon the
licensed premises covered by the holder's permit:
* * *
(3) permit gambling or games of chance;
* * *
(5) permit any act, the commission of which tends to create a public
nuisance or which constitutes a crime under the laws of this State. .
. .
(emphasis added). In construing a statute, its words must be given their plain and ordinary meaning
without resorting to subtle or forced construction to limit or expand the statute's operation. Rowe
v. Hyatt, ___ S.C. ___, 468 S.E.2d 649 (1996). Courts must apply clear and unambiguous terms of
a statute according to their literal meaning. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991).
Moreover, a court must presume that the legislature intended to accomplish something with each
statute and not to engage in futile action. Purvis v. State Farm Mut. Auto. Ins. Co., 304 S.C. 283,
403 S.E.2d 662 (Ct. App. 1991). Each part of a statute should be given effect, and each word given
its plain meaning, if this can be accomplished by any reasonable construction. Sea Island Scenic
Parkway Coalition v. Beaufort County Bd. of Adjustments and Appeals, 316 S.C. 231, 449 S.E.2d
254 (Ct. App. 1994), rev'd on other grounds, 471 S.E.2d 142 (1996).
In Berkebile v. Outen, 426 S.E.2d 760, 311 S.C. 50 (1993), the Supreme Court addressed the
issue of whether "S.C. Code Ann. § 32-1-10 (1991), requires the playing of an illegal game as a
prerequisite to the recovery of a [video poker] gambling loss." The Court noted that when the
General Assembly enacted the Video Game Machines Act, it did not modify § 32-1-10 to require
that a gambling loss recovery be limited to only illegal gambling losses. The Court held "[a] basic
presumption exists that the legislature has knowledge of previous legislation when later statutes are
passed on a related subject. Bell v. South Carolina State Highway Dept., 204 S.C. 462, 30 S.E.2d
65 (1944). This leads, at least, to an inference that the legislature does not require a showing of
illegal gambling as an element for recovery under § 32-1-10." The Court further reasoned that
because illegal contracts have historically been unenforceable, this statute would be unnecessary if
it applied solely to illegal gambling. The Court therefore concluded since there is no requirement that
the game be illegal, an individual could recover video poker gambling losses.
Applying the above principles to Section 61-4-580, it is clear that, in order to give both
subsections (3) and (5) full force and effect, subsection (3) must be construed to encompass all forms
of gambling, not merely those forms of gambling which are prohibited by law. To give subsection
(3) any other interpretation would be to render it a nullity, since subsection (5), which prohibits a
permit or license holder from permitting any act which constitutes a crime on the licensed premises,
would necessarily include a prohibition against illegal gambling.
Furthermore, in Berkebile, id., the Court upheld the application of S.C. Code Ann. § 32-1-10
to video poker losses for reasons substantially similar to those in this case. The Court held in
Berkebile that § 32-1-10 was enacted "to protect a citizen and his family from the gambler's
uncontrollable impulses." 426 S.E.2d at 763. Likewise, S.C. Code Ann. § 61-4-580 contemplates
the protection of the public by preventing individuals under the influence of beer or wine from
gambling excessively.
10. The Court held in Byers v. South Carolina Alcoholic Beverage Control Commission,
281 S.C. 566, 316 S.E.2d 705 (S.C. App. 1984) that "[an applicant's] plans for the establishment
have little bearing on the determination of suitability of [a] location. Such factors are proper for
consideration on a petition to revoke or suspend a permit pursuant to Code Section 61-9-410."
Byers, 316 S.E.2d at 707 (emphasis added). In Byers the evidence did not establish that the applicant
was currently carrying on an activity that was in violation of the Alcoholic Beverage Control Act.
The Court was left to speculate that the applicant would violate the Act in the future. However, in
this case the Respondent not only "plans" to permit gambling at his establishment in the future, but
is currently conducting and intends to continue that activity at his location. Therefore, the issue
before this Court is not whether the location is suitable because an applicant may engage in a future
action that is prohibited by the Act. Rather, the issue is whether this permit should be approved at
a location where the applicant is currently engaged in activity that is unlawful under the Alcoholic
Beverage Control Act. Approval of a permit under these circumstances is simply not proper.
11. 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.
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 Danny R. Land for
Todd's Grocery is denied.
AND IT IS SO ORDERED.
______________________________________
Ralph King Anderson, III
Administrative Law Judge
Columbia, South Carolina
June 16, 1998 |