South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

Darryl L. Whisonant, d/b/a Lando Beach Tavern vs. SCDOR, et al

South Carolina Department of Revenue

Darryl L. Whisonant, d/b/a Lando Beach Tavern

South Carolina Department of Revenue and Tom Funderburk

For the Petitioner: Michael F. Gillen, Esquire

For Respondent Funderburk: Brian Gibbons, Esquire




This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §61-2-90 (Supp. 1998) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1998) for a contested case hearing. The Petitioner, Darryl L. Whisonant, seeks an on-premise beer and wine permit for Lando Beach Tavern. Respondent Department of Revenue (Department or DOR) made a Motion to be Excused which was granted by my Order dated March 2, 1999. Afterwards, Protestant Tom Funderburk made a Motion to Intervene that was granted by my Order dated May 14, 1999. A hearing was held in this matter on May 18, 1999, 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 the Respondent, 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 Respondent and the Department.

2. Lando Beach Tavern is located in the Chester County town of Edgemoor at 3982 Edgeland Drive. The location was previously permitted for twelve years for the sale of beer and wine off-premise which was later converted to an on-premise beer and wine permit. The Petitioner now seeks an on-premise beer and wine permit for Lando Beach Tavern. He testified that his hours of operation would be as follows:

a. 12:00 p.m. until 12:00 a.m. on Monday, Tuesday, Wednesday, Thursday, Friday and Saturday.

b. Closed on Sunday.

3. The qualifications set forth in S.C. Code Ann. §61-4-520 (Supp. 1998) 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 public 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 and 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 Petitioner has held several beer and wine permits in South Carolina in the past. Furthermore, he currently holds a beer and wine permit and liquor license for Chucky T's, an establishment located in Charlotte, North Carolina.

7. Several nearby locations hold beer and wine permits, including the 901 Quick Stop and the Edgemoor Game Room.

8. Mr. Funderburk objects to the issuance of a permit to Petitioner because he believes issuing the permit would have a negative impact on the quality of life in the Edgemoor community. More specifically, he believes this location will result in an increased risk of traffic accidents and crime related to intoxicated pedestrians and motorists; littering; loitering; loud noise; and crowds associated with outdoor volleyball tournaments and turkey shoots.

9. In response to the Protestant's concerns regarding noise, the Petitioner stipulated that he will not have live bands at the location or permit loud music to emanate from Lando Beach Tavern. The Petitioner also testified that the parking lot will be visually monitored for loitering and that no one will be allowed to "hang out" in parked cars. These individuals will be asked to leave the premises.

10. Volleyball tournaments and turkey shoots have been held at this location in the past under a different permittee. Those tournaments and turkey shoots attracted large crowds which resulted in traffic problems the adjacent roadways.

11. The Chester County Sheriff's department reported only one serious incident at the location during the time in which it previously had a building on its premises that held an on-premise beer and wine permit. The incident was a shooting in 1992. However, that singular incident does not establish that this location presents a negative impact on the quality of life of the residents in the area.

12. Mr. Funderburk's arguments appear to be based on a sincere concern for his community. However, though the evidence offered by Mr. Funderburk raises "potential" concerns that this business would change the integrity of the vicinity or create an overall adverse impact on the community, the evidence he offered did not substantiate his concerns in this matter. In order to deny this permit, direct evidence of an adverse impact on the community is necessary, particularly in light of the fact that other similar businesses exist in close proximity to the location in question.

13. Therefore, I find that the proposed location is suitable for the sale of beer and wine on-premise only with the restrictions set forth below in this Order.


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 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, however, 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 on permits, provides:

Any stipulation and/or agreement which is voluntary 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 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 restrictions established below in the Order.


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

ORDERED that the on-premise beer and wine permit application of Darryl L. Whisonant, 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 and his employees shall prohibit loitering and the consumption of beer, wine, or liquor in the parking lot area of the proposed location. Several "No Loitering" signs must be posted on the exterior of the building in places clearly visible from the entrance and parking areas.

2. The Petitioner shall only sell beer and wine on Monday, Tuesday, Wednesday, Thursday, Friday, and Saturday, opening no earlier than 12:00 p.m. and closing no later than 12:00 a.m.

3. The Petitioner will prohibit outdoor sporting activities at the location including turkey shoots or volleyball tournaments.

4. The Petitioner will limit all parking to the paved parking area immediately surrounding the location and shall not permit parking along the shoulder of Highway 901.

5. The Petitioner shall not permit loud music or other noise at the location. Petitioner shall also not permit performances by live bands at the location.

IT IS FURTHER ORDERED that a violation of any of the above 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 payment of the required fees and costs by the Petitioner.





July 28, 1999

Columbia, South Carolina

Brown Bldg.






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