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, Marguerite O. Mears, seeks an on-premise beer and wine permit for Icehouse Sports Room. 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 May 5,
1999. A hearing was held in this matter on September 22, 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 Icehouse Sports Room, located in Orangeburg County at 820
Peake Street, Holly Hill, South Carolina. Ms. Mears testified that her hours of operation would be as follows:
a. 5:00 p.m. to 1:00 a.m., Monday through Friday;
b. 5:00 p.m. to 12:00 a.m. Saturday; and
c. Closed on Sunday.
3. The Petitioner testified that the location will be a small establishment that will hold around thirty patrons. The Icehouse
Sports Room will serve only snacks such as potato chips and popcorn, at this time. It will have two pool tables so as to
serve as the "home place" for Ms. Mears' pool league. The location may have a jukebox but will not have live bands
perform on the premises. Ms. Mears further testified that no music will be heard outside the location so as to disturb the
residents across the street.
4. The proposed location has adequate parking with about eight spaces available in front of the business and twenty to thirty
spaces in the back. Also, Mr. Burchette, the landlord, testified that he would install two security lights behind the location in
the parking area, as indicated in the South Carolina Law Enforcement Division Report on this application. Finally, Mr.
Burchette testified that the location has not had any complaints from local law enforcement in the past.
5. 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.
6. The Petitioner has no criminal record and is of sufficient moral character to receive a beer and wine permit.
7. The proposed location is not unreasonably close to any church, school or playground. However, there are residences
across the street from the location.
8. The Petitioner testified that there are no on-premise consumption establishments in the city of Holly Hill at this time.
However, a retail liquor store is within 1/2 block of the proposed location. Furthermore, other locations exist within the city
limits of Holly Hill that sell beer and wine for off-premise consumption only.
9. The proposed location is in a commercially-zoned area of Holly Hill. Other commercial businesses are also in the general
vicinity such as the Holly Hill Farm Center, a dry cleaners and a barber shop. However, in some towns, zoning lines may
seen indistinct between residential and commercial areas within the city limits because of the intermingling of houses and
businesses.
10. The Protestants contend that this location is not suitable because it is in a dominantly residential portion of the city, even
though the location is zoned as commercial and has been used in that capacity since at least 1989.(1) The concerns voiced by
the Protestants were:
a. The safety of the children walking by the proposed location;
b. The value of their homes and property; and
c. The quality of life they will experience should this permit be granted.
11. The Protestants 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 children who walk by the location on their way to and from school. However,
the hours of operation of the Icehouse Sports Room will begin at 5 p.m., a time in which children are not in school.
Therefore, I find that though the evidence the Protestants offered raises "potential" concerns that this business could create
an adverse impact on the safety of the children, the evidence did not substantiate their concerns in this matter so as to deny
the issuance of this permit.
12. I find the proposed location to be suitable for an on-premises beer and wine permit.
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).
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. 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 and quality of life. 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. Furthermore, an ordinance may reasonably exclude certain uses of property from a business,
commercial, or industrial district, and, accordingly, may exclude certain businesses from a district. 101A C.J.S. Zoning and
Land Planning § 59 (1979). However, other than their assertions that their property values and quality of life would be
decreased, the Protestants offered no evidence to support their contentions.
7. "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). However, I conclude that
this proposed location would not adversely impact this community.
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 Marguerite O. Mears, d/b/a Icehouse Sports Room, be
granted.
AND IT IS SO ORDERED.
____________________________
Ralph King Anderson III
Administrative Law Judge
November 24, 1999
Columbia, South Carolina
1. The owner of this location testified that it was a fish market from 1989 to 1992 and was a Chinese restaurant from 1992
to 1997. |
