ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division or ALJD)
pursuant to S.C. Code Ann. §61-2-260 (Supp. 1998), S.C. Code Ann. §61-4-520 (Supp. 1998) and
S. C. Code Ann. §1-23-310 et seq. (1986 and Supp. 1998) for a contested case hearing pursuant to
an off-premise beer and wine permit application filed by the Petitioner Eckerd Drugs #8016. The
Respondent made a Motion to be Excused which was granted by my Order dated January 19, 1999.
A hearing was held in this case before me on March 24, 1999 at the 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, Protestant, and South Carolina Department of Revenue.
2. Eckerd Drugs #8016 is located at 2708 Rosewood Drive, Richland County, South
Carolina. The proposed location is in a business area in which several locations within a half-mile
radius are licensed to sell alcohol. However, this exact location, because it is a new structure, has
never been permitted for the sale of beer or wine. The Petitioner now seeks an off-premise beer and
wine permit for Eckerd Drugs. The Petitioner set forth in his application that the hours of operation
would be 9:00
a.m. to 9:00 p.m., Monday through Saturday.
3. The qualifications set forth in Section 61-4-520 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 in a newspaper
of general circulation.
4. The Petitioner has no criminal record.
5. The proposed location is not unreasonably close to any church, school or playground.
6. The Protestant owns and operates The Montessori Preschool of Columbia. This
business is located approximately 362 feet from the proposed location. The Protestant objects to the
issuance of a permit to the Petitioner for the following reasons:
a. He believes too many locations in the Rosewood area have permits to sell
beer, wine and/or liquor; and
b. He is concerned that trash will be thrown in the Preschool yard as a result of
the sale of beer or wine at the proposed location.
7. Approximately eight locations within 1/2 mile of Eckerd Drugs #8016 currently hold
on and off-premise beer, wine permits and/or liquor licenses.
8. The Protestant's argument appears to be based on a sincere concern for the Rosewood
community in which he resides and operates his business. However, he did not offer a sound legal
argument to establish that the granting of a permit for this store will harm the community or will
result in excessive littering. Furthermore, the Petitioner stated at the hearing that no "single beers"
will be sold at Eckerd Drugs #8016. This should alleviate most of the Protestant's concerns
regarding trash accumulation as it will prevent the type of sale that could result in individuals
discarding cans or bottles in the vicinity of the Protestant's property.
9. As no evidence was presented at the hearing to establish that the location of this
business is unsuitable, the Petitioner's request for an off-premise beer and wine permit is granted
with the stipulation set forth below.
STIPULATION
The Petitioner stipulated at the hearing that Eckerd Drugs would abide by the following
stipulation if granted a beer and wine permit:
No single beers will be sold at Eckerd Drugs #8016.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Supp. 1998) 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. 1998) 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. 1998) 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 below-listed stipulation.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the off-premise beer and wine permit application of Eckerd Drugs
#8016 be granted upon the Petitioner signing a written Agreement with the South Carolina
Department of Revenue agreeing to the stipulation set forth below:
No single beers will be sold at Eckerd Drugs #8016.
IT IS FURTHER ORDERED that a violation of the above stipulation or restriction 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 upon the payment of the required fee and cost by the Petitioner.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
May 4, 1999
Columbia, South Carolina |
