South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Larry J. Stanley, d/b/a Hollow Creek Marina vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Larry J. Stanley, d/b/a Hollow Creek Marina

Respondents:
South Carolina Department of Revenue and William Carl Colson
 
DOCKET NUMBER:
98-ALJ-17-0239-CC

APPEARANCES:
For the Petitioner: Tobias G. Ward, Jr., Esquire

For the Respondent/Colson: Marlene T. Sipes, Esquire
 

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. 1997) for a contested case hearing. The Petitioner, Larry J. Stanley, seeks an on-premise beer and wine permit for the Hollow Creek Marina. The Respondent made a Motion to be Excused which was granted by my Order dated April 30, 1998. A hearing was held June 18, 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, Respondent Colson, and South Carolina Department of Revenue.

2. The Petitioner seeks an on-premise beer and wine permit for the Hollow Creek Marina at 3337 Highway 378, Lexington, South Carolina. The Petitioner stated in his application that his hours of operation would be as follows:

a. 5:00 a.m. to 11:00 p.m., Monday through Thursday

b. 5:00 a.m. to 12:00 p.m., Friday and Saturday

c. Closed on Sunday

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 significant criminal record and is of sufficient moral character to receive a beer and wine permit.

5. The proposed location is on a 2.4 acre tract abutting Lake Murray. After acquiring the property, the Petitioner made renovations to the interior of the business and added a deck on the rear of the building. The Petitioner intends to operate a Sports Lounge at the location along with leasing camping spaces and boat slips. He testified that he intends to occasionally have live music at the location. However, he stipulated that there would be no live performances on the outside deck.

Respondent Colson objects to the nature of the Petitioner's proposed business. He contends that the Petitioner intends to change the business at this location from a bait and tackle store to a bar. Although the area is zoned by Lexington County for "intensive development," it has historically been a quiet area. The Petitioner's business is located directly off of Highway 378. However, there are several residences located near the Petitioner's business. Access to the residences is gained by Rocky Ridge Road, a separate road off Highway 378. The residences begin at the Petitioner's property line and follow the lake away from Highway 378. Respondent Colson's residence is located directly beside the Petitioner's business.

Several businesses have held on-premise beer and wine permits at the proposed location. Wade Chewning held an on-premise beer and wine permit for Hollow Creek Enterprises at the location from December 1983 to September 30, 1988. The nature of Mr. Chewning's business was



a "general store." Martha Adams operated Hollow Creek Bait and Tackle at the location with an on-premise beer and wine permit from December 1991 to November 30, 1994. Her business constituted the sale of "bait, tackle, groceries [and] beer." Finally, Scott Cogswell operated E-Z Landing at the location as a bait and tackle shop. He held an on-premise beer and wine permit for that business from December 1995 to November 30, 1996.

Only a small amount of beer or wine was purchased at the previous business at the proposed location. There was no live entertainment and, since the deck did not exist, no consumption of beer or wine occurred outside. Entertainment primarily consisted of a television. None of the previous businesses at the proposed location operated as a bar, but rather as a quintessential "bait and tackle" store where individuals may also drink a beer on the premises. In fact, the interior of the location included only a 12-foot bar and one table with four chairs.

6. Major Tate appeared on behalf of the Lexington Sheriffs Office to protest this permit. He contends that the proposed location is unsuitable because another bar in the area would be a burden upon law enforcement. Specifically, the Petitioner's business is in the area designated as the South region by the Lexington Sheriffs Office. A resident deputy and two additional deputies service that area. Sometimes the calls "back up eight-to-ten deep" on Fridays and weekends. Under those circumstances, if problems occurred at the location, it would be difficult to get a Sheriff's Deputy to the location within a reasonable time period.

7. The Petitioner proposes to change the nature of this business from what has been previously permitted. As such, the location poses a potential burden upon the local law enforcement. Furthermore, the added noise from the proposed location, especially from the outside deck at the location, creates a potential nuisance for the local residents. However, 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 only with the restrictions set forth below.







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 Larry J. Stanley for Hollow Creek Marina be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue agreeing to above stipulations and restrictions that are set forth below:

1. The Petitioner shall maintain proper lighting around the Hollow Creek Marina to discourage criminal activity. The Petitioner shall insure that this lighting does not reflect or shine upon the local residences.

2. The Petitioner or his employees shall prohibit loitering and the consumption of beer, wine or liquor outside the Hollow Creek Marina. Furthermore, the Petitioner shall monitor the parking area to insure that no loud music emanates from that area.

3. The Petitioner shall not have any live bands at the Hollow Creek Marina or any music that can be heard outside of the location. Furthermore, any noise emanating from Hollow Creek Marina that is noticeably audible within any local residence with closed doors and windows shall be considered excessive.

4. The Petitioner shall not allow the consumption of beer, wine or alcohol upon the deck of the proposed location.

5. No beer or wine shall be sold at the Hollow Creek Marina between the hours of 9:00 p.m. and 5:00 a.m.

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

August 20, 1998

Columbia, South Carolina




Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court