ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
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, Eunice W. Ramsey, seeks an on-premise beer and wine permit for Ellen's Bar and Grill. 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 26, 1999. A
hearing was held in this matter on June 29, 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. Ellen's Bar and Grill is located in rural Aiken County at 2613 Edgefield Highway North, also known as S.C. Highway 19.
There was no evidence presented at the hearing that this locale has been zoned for any specific purposes. The location was
previously permitted for twenty-six years for the off-premise sale of beer and wine. The Petitioner now seeks an on-premise
beer and wine permit for Ellen's Bar and Grill. Ellen's Bar and Grill will serve food prepared on the premises as well as
furnish a few convenience items for purchase, such as milk, bread and eggs. She testified that her hours of operation would
be as follows:
a. 6:00 a.m. to 2:00 a.m., Monday through Friday;
b. 6:00 a.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. There is a business located about ½ mile from Ellen's Bar and Grill that currently holds an off-premise beer and wine
permit.
7. Protestant John Reiter, representing himself and the other Protestants in this matter, set forth that they would not object to
an off-premise permit being granted to the location, as it has held in the past. Rather, the Protestants object to the issuance
of this on-premise permit to the Petitioner because they are concerned about the impact this proposed location would have
upon the safety of Edgefield Highway. Edgefield is a two lane asphalt highway that, as a main roadway located within
Aiken County, is heavily traversed. The Protestants testified that they believe that the additional ingress and egress of cars
generated by the Petitioner's business will result in an increased risk of traffic accidents upon that highway. However, the
Protestants offered no direct evidence to support that contention.
8. The Protestants who reside on Mallard Court, a group of homes situated down a road located approximately two-tenths
of a mile from the proposed location, are concerned that their property values will decrease if this on-premise permit is
issued.
9. Lt. Timothy Chipley of the Aiken County Sheriff's Department testified that response time to the proposed location may
be lengthy. However, he did not offer any direct evidence that this would necessarily impact the issuance of this permit.
10. The Protestants' arguments appear to be based on a sincere concern for the safety and general nature of their community.
However, though the evidence they offered raises "potential" concerns that this business would change the integrity of the
vicinity or create an overall adverse impact on the safety of this portion of Edgefield Highway, the evidence they offered did
not substantiate their concerns in this matter. In order to deny this permit, direct evidence of an adverse impact on the
community is necessary.
11. Therefore, I find that the proposed location is suitable for a permit allowing the on-premise sale and consumption of beer
and wine with the restrictions and stipulations set forth below in this Order.
STIPULATION
The Petitioner specified at the hearing that she would abide by the following stipulation if granted an on-premise beer and
wine permit:
The Petitioner will place all poker machines in a room separate from
where alcohol is served and consumed. No alcohol will be allowed in
the area(s) where the video poker machines are located.
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 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 a 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 and to determine
whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or
whether the case is supported by facts. 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. As set forth earlier, one of the Protestants' concerns was that a business that offers on-premise consumption of beer and
wine would decrease their property values. The Protestants are in essence asking this Court to effectuate zoning. The
ultimate purpose of zoning is to confine certain classes of buildings and uses to certain localities and thereby protect the
value of the zoned property. 101A C.J.S. Zoning and Land Planning § 101 (1979). Such authority is vested solely in the
local government. Other than their assertions that their property values would be decreased, the Protestants offered no
evidence to support their contention. Furthermore, no evidence was presented at the hearing that this area is zoned at all.
10. 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.
11. The Petitioner meets the statutory requirements for holding an on-premise beer and wine permit at the proposed location
with the stipulations set forth above.
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 Eunice W. Ramsey be granted upon payment of the
required fees and costs by the Petitioner.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson III
Administrative Law Judge
August 23, 1999
Columbia, South Carolina |
