SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1997) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997) for a contested case hearing. The Petitioner, Hugh S. Clark, seeks an on-premise beer and wine permit for Curtists Corner. The Respondent made a Motion to be Excused which was granted by my Order dated July 6, 1998. A hearing was held into this case on September 16, 1998, at the Administrative Law Judge Division.

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. Curtists Corner is located between Brown Chapel and Bush River Road in Newberry, South Carolina. The proposed location has been a neighborhood social club for several years. However, the location has never been permitted for the sale of beer or wine. The Petitioner now seeks an on-premise beer and wine permit for Curtists Corner. The Petitioner stated that his hours of operation would be as follows:

a. 7:00 p.m. to 1:00 a.m., Thursday

b. 6:00 p.m. to 3:00 a.m., Friday

c. 5:00 p.m. to 12:00 p.m., Saturday

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 criminal record. Though the Petitioner was evasive in answering questions about his location, he 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 Protestants object to the issuance of a permit to the Petitioner for the following reasons:

a)Granting the permit could create a traffic hazard in the area.

b)Granting the permit could result in an increase in criminal activity.

7. Curtists Corner is located on a heavily traveled highway in a predominately residential area. Numerous residents in the area, including minors, walk along the roadway beside the proposed location. Additionally, there is an area approximately ½ mile from the proposed location that has a myriad of criminal problems. In fact, the community is constructing the Helena Community Center in that area to combat the effects of crime upon the local youth.

8. Two locations approximately ¼ mile from Curtists Corner hold off-premise beer and wine permits.

9. The Protestants' arguments appear based on a sincere concern for their community. However, though the evidence offered by the Protestants raises concern about future problems in the area, the evidence offered did not substantiate their concern in this matter. There is simply no evidence other than speculation to establish that the granting of a permit for this store will augment the criminal activity in this area that is currently occurring ½ mile from the proposed locations. If that change was to occur after the Petitioner receives a beer and wine permit the proposed location would no longer be suitable.

There is also insufficient evidence to find that the well-being of the citizens of the surrounding vicinity, especially those walking in the area, would be jeopardized by the issuance of a permit to the Petitioner. However, given the fact that numerous people walk along the roadways in the area, criminal activity is prevalent not far from this location and that the roadways are heavily traveled, I find that the restrictions set forth below are appropriate. Furthermore, given the residential nature of the area I also find that the hours of operation of the Petitioner's location should be restricted as set forth below.

10. 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.

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.

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the on-premise beer and wine permit application of Hugh S. Clark for Curtists Corner 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:

1. The Petitioner shall maintain proper lighting around his proposed location 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 in the parking lot area of the proposed location.

3. The Petitioner or his employees shall monitor the parking area to insure that there are no minors in the area and that no public disturbance is created.

4. The Petitioner shall close his business no later than 1:00 a.m.

5. The Petitioner shall not allow any traffic to enter or exit his location from Bush River Road.

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

November 16, 1998

Columbia, South Carolina