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, Michael R. Morrow, seeks an off-premise beer and wine permit for Hilda
Grocery and Meat. The Respondent made a Motion to be Excused which was granted by my Order
dated May 14, 1998. A hearing was held on July 14, 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 Petitioner has no criminal record and is of sufficient moral character to receive a
beer and wine permit.
4. The proposed location is not unreasonably close to any school.
5. The Petitioner seeks an off-premise beer and wine permit for Hilda Grocery and Meat
at 31 Broughton Avenue, Hilda, South Carolina. Hilda Grocery and Meat is located in the
unincorporated town of Hilda. The Petitioner's proposed location was previously a grocery store but
did not sell beer or wine. The Petitioner also intends to operate this location as a grocery store but seeks
to sell beer and wine at the proposed location.
6. The Protestants contend that the proposed location is unsuitable because:
a. The town of Hilda is comprised of elderly people;
b. Young people "hang out" at an abandoned train depot
near the proposed location and at a vacant lot beside the
proposed location;
c. There is a playground and a church near the proposed location; and
d. No beer or wine permit has ever been issued for a location in Hilda.
The evidence does not establish that this particular area is unsuitable. The proposed location is
approximately 600 feet from the playground maintained by Hilda. Furthermore, the playground is on
a separate street from the proposed location, and the old fire department and town hall are located
between the proposed location and the playground. Additionally, the closest church to the proposed
location is the First Baptist Church which is located approximately 4/10 of a mile from the proposed
location. Finally, there is only one residence located on the same block as the proposed location. That
residence is 400 feet from the proposed location. Moreover, an abandoned commercial building and
a vacant lot separate the residence from the proposed location. Therefore, the proposed location is not
unreasonably close to any residence, church or playground.
The Protestants' contention that granting the permit could result in increased loitering by the
young people of Hilda presumes, without any evidentiary support, that the loitering that currently occurs
by young people of Hilda upon property other than the proposed location will increase because of an
off-premise beer and wine permit for the proposed location. There is simply no evidence to establish
that the granting of a permit for this store will augment the loitering or the consumption of beer or wine
by the young people of Hilda. Nor is there any direct evidence that the well-being of the surrounding
vicinity would be jeopardized by the issuance of a permit to the Petitioner. However, given the fact that
young people do congregate in the area, I find that a restriction prohibiting loitering upon the
Petitioner's property is appropriate.
7. The proposed location does not appear suitable for an on-premise beer and wine permit.
However, the Petitioner seeks only an off-premise beer and wine permit. I find that the proposed
location is suitable only for the sale of beer and wine off-premise 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. 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.
9. The Petitioner meets the statutory requirements for holding an off-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 off-premise beer and wine permit application of Michael R. Morrow for
Hilda Grocery and Meat be granted upon the Petitioner signing a written Agreement with the South
Carolina Department of Revenue agreeing to the restrictions that are set forth below:
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 on each shift to monitor the parking
area while beer or wine is sold.
IT IS FURTHER ORDERED that a violation 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 off-premise beer and
wine permit to 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 14, 1998
Columbia, South Carolina |
