South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
David Rutledge, d/b/a Club 2000 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
David Rutledge, d/b/a Club 2000

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
99-ALJ-17-0044-CC

APPEARANCES:
James H. Harrison, Esquire
for Petitioner

Arlene Hand, Esquire
for Respondent

Walter Morris, Protestant
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 1998) for a hearing pursuant to the application of David Rutledge. The Petitioner seeks an on-premises beer and wine permit for a social club under construction at 125-B Bloomvillage, in Andrews, Williamsburg County, South Carolina.

After timely notice to the parties and the protestants, a hearing was conducted at the Administrative Law Judge Division in Columbia, South Carolina. The application for an on-premises beer and wine permit is hereby granted, with a restriction.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. The Petitioner seeks an on-premises beer and wine permit for a social club located within the county of Williamsburg, South Carolina at 125-B Bloomvillage Road.

2. The South Carolina Department of Revenue's file was made a part of the record by reference with the consent of the parties.

3. The land and/or building where this club is to be located is owned by Henrietta Anderson.

4. The Petitioner will be involved in the management or day-to-day operation of the business, and he intends to open the club for business on Thursdays through Saturdays.

5. No church, school, or playground is within close proximity to the proposed location.

6. The State Law Enforcement Division ("SLED") completed a criminal background investigation of Petitioner David Rutledge. The SLED report did not reveal any criminal violations that would disqualify Petitioner from being issued a permit. Further, there is nothing in the record before this tribunal to indicate that Petitioner has engaged in acts that imply the absence of good moral character.

7. The Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South Carolina, and has maintained his principal residence in the State for at least thirty (30) days prior to the date of making application for an on-premises beer and wine permit.

8. The Petitioner has never held a beer and wine permit or other license for the sale or consumption of alcoholic beverages.

9. Notice of the application appeared in The Kingstree News, a newspaper of general circulation in the area of the proposed location, once a week for three (3) consecutive weeks, and notice was posted at the proposed location for fifteen (15) days.

10. Protestant Walter Morris objects to the issuance of the beer and wine permit. He cites the following reasons as the basis for his objection: (1) the area already has three to four social clubs; (2) the community has a high incidence of crime; and (3) a number of teenagers live in the area and are likely to be affected by the increased traffic resulting from the club or are likely themselves to frequent the club.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following: 1. S.C. Code Ann. § 61-2-260 (Supp. 1998) authorizes the South Carolina Administrative Law Judge Division to hear this case.

2. S.C. Code Ann. § 61-4-520 (Supp. 1998) establishes the criteria for the issuance of a beer and wine permit.

3. As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad, but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

4. There has been no evidentiary showing that the present location is unsuitable or that the issuance of an on-premises beer and wine permit would have an adverse impact on the surrounding community. While the protestant cited opposition to the issuance of the permit, his opposition was grounded in speculation. The denial of a license or permit to an applicant on the grounds of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

5. The Petitioner satisfies all of the statutory requirements for holding an on-premises beer and wine permit.

6. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

7. 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to permits, provides:

Any stipulations 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 permits and 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 [sic] be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.



STIPULATION(S)

1. The applicant agrees, as a condition to the issuance of an on-premises beer and

wine permit, that he will not permit his patrons to park on the shoulders of the road surrounding the club, and he will take assertive action to ensure that his patrons comply with this restriction.



ORDER

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

ORDERED that the application of David Rutledge for an on-premises beer and wine permit for the location at 125-B Bloomvillage Road, Andrews, South Carolina, Williamsburg County, be granted upon the applicant signing a written agreement to be filed with the Department to adhere to the following restriction:

The Petitioner will not permit his patrons to park on the shoulders of the road surrounding his club, and he will take action to ensure that his patrons comply with this restriction.

IT IS FURTHER ORDERED that a violation of the above restriction is considered a violation against the permit and may result in a fine, suspension, or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue the on-premises beer and wine permit upon payment of the required fee(s) and cost(s) by the Petitioner.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge





March 23, 1999

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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