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
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