ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §61-2-90 (Supp. 1998), §61-4-520 (Supp. 1998), and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1998) for a contested case hearing. The
Petitioner, Junior B. Thompkins, seeks an on-premise beer and wine permit for J.R.'s Hide Away. Respondent Department
of Revenue (Department or DOR) made a Motion to be Excused stating that but for the protests of concerned citizens, the
Department would have found this location to be suitable. This motion was granted by my Order dated March 19, 1999. A
hearing was held in this matter on June 24, 1999, 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 the Protestants, 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, the Department, and the
Protestants.
2. The Petitioner seeks an on-premise beer and wine permit for J.R.'s Hide Away. J.R.'s Hide Away is located in rural
Horry County at 3084 Emory Road, Myrtle Beach, South Carolina. He testified that his hours of operation would be as
follows:
a. 2:00 p.m. to 2:00 a.m., Monday through Friday;
b. 2:00 p.m. to 12:00 a.m. Saturday; and
c. 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 Pit Stop Lounge, which currently holds an on-premise beer and wine permit, is approximately ½ mile from the
proposed location. Additionally, J&M Corner Market, which holds an off-premise beer and wine permit, is approximately ¾
mile from the proposed location. However, neither of those businesses are on Emory Road.
7. Protestants contend that this location is not suitable because it is in a residential area. Emory Road is approximately 1
mile in length and is zoned commercial. Additionally, the Petitioner has sold the property that is between the proposed
location and Protestant Bellamy's property to CDI Construction Company. However, though CDI may build a commercial
business upon its property in the future and a warehouse is also located elsewhere upon Emory Road, there are currently
eight residences within ¼ of the proposed location. In fact, the Petitioner's proposed business was previously the residence
of his mother for approximately 30 years. The Petitioner has also allowed individuals at the proposed location who have
been loud and have discharged weapons across Emory Road.
Despite the commercial zoning of this area, at present Emory Road is predominately residential. Furthermore, granting an
on-premise beer and wine permit for the proposed location would create an adverse impact on the community.
8. The Protestants also contend that this location is not suitable for a beer and wine permit because of the impact this
proposed location would have upon the safety of the residents on Emory Road. Emory Road is a dead end road. The
Protestants testified that they believe that the additional ingress and egress of cars generated by the Petitioner's business will
result in a risk of traffic accidents upon Emory Road. The Protestants' arguments appear to be based on a sincere concern
for the safety of their community. However, though the evidence they offered raises "potential" concerns that this business
would create an adverse impact on the safety of this portion Emory Road, the evidence they offered did not substantiate their
concerns in this matter.
9. I find that the proposed location is not suitable for a permit allowing the on-premise sale and consumption of beer because
of its proximity to the local residences.
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, the Administrative Law Judge Division is vested, as the trier of fact,
with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593,
281 S.E. 2d 181 (1981). 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). In
determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates the adverse
effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E. 2d 476 (Ct.
App. 1984). It is also 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). In particular, the proximity of residences to the
proposed location is an adequate basis to deny a beer and wine permit. Kearney, supra; Schudel v. S.C. A.B.C.
Commission, 276 S.C. 138, 276 S.E. 2d 308 (1981).
5. A beer and wine permit is neither a contract nor a property right. It is, rather, a privilege 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. Feldman v. South Carolina Tax Comm'n, 203 S.C. 49, 26 S.E. 2d 22 (1943).
6. "A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely
affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be
detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive
to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981).
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 Junior B. Thompkins be denied.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson III
Administrative Law Judge
September 22, 1999
Columbia, South Carolina |
