ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S. C. Code Ann. § 61-4-520 (Supp. 1998); S. C. Code Ann. §§ 1-23-600, et seq.,
(Supp. 1998); and S. C. Code Ann. Regs. 7-96 (1976) for a contested case hearing. The Petitioner, Just Add Water, Inc.,
seeks an on-premises beer and wine permit. The Respondent, South Carolina Department of Revenue (DOR), declined to
process the Petitioner's application for the beer and wine permit because the proposed location had previously been found
unsuitable and the DOR determined that the Petitioner failed to show a material change with respect to the proposed
location. In addition, public protests have been made to the DOR. After notice to all parties, a hearing was conducted on
August 31, 1999.
Having observed the witnesses and the exhibits, including a video of the proposed location, and taking into consideration all
testimony and evidence presented, I find and conclude that the Petitioner has shown a material change with respect to the
proposed location. I further find and conclude that the DOR should process the Petitioner's application for an on-premises
beer and wine permit for the business located at 1701 Dreher Island Road, Chapin, South Carolina.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings of fact:
1. All parties and protestants were given notice of the time, date and place of the hearing.
2. The hearing is a "change of condition" hearing, and the only issue before this tribunal is whether there has been some
material change to warrant processing of the application by the DOR.
3. In addition to the relevant case law, the pertinent regulation applicable to this proceeding is 23 S.C. Code Ann. Regs. 7-96
(1976) which provides, as follows:
The Alcoholic Beverage Control Commission will not hear an application for a retail beer and wine permit or an application
for a retail off-premise beer permit when the location involved has been declared by the Alcoholic Beverage Control
Commission to be improper unless and until the applicant can affirmatively show that some material change with respect to
the location has occurred, or unless otherwise ordered by the Alcoholic Beverage Control Commission.
4. On March 23, 1999, Just Add Water, Inc. filed an application with the DOR for an on-premises beer and wine permit for
its premises located at 1701 Dreher Island Road, Chapin, South Carolina.
5. The proposed location had been formerly licensed for the sale of beer and wine as "Buck's Marina" from 1965 to 1989.
During this time, nearby residents had complained about rowdy crowds, fighting, drinking outside the location, loud music,
foul language, and public drunkenness caused by patrons of Buck's Marina. The residents also complained about problems
in a community park nearby.
6. On August 21, 1992, John E. O'Cain, Jr. filed an application with the ABC Commission for an on-premises beer and wine
permit for the same location at 1701 Dreher Island Road, Chapin, South Carolina. Mr. O'Cain planned the location to
include video machines, pool tables, poker machines, and a juke box. By Order filed on February 11, 1993, the ABC
Commission denied Mr. O'Cain's application for an on-premises beer and wine permit for the proposed location.
7. On June 4, 1997, James B. Cameron filed an application with the DOR for an on-premises beer and wine permit. On
March 30, 1998, the Administrative Law Judge Division ordered the DOR not to process Mr. Cameron's application
because no material changes were made with respect to the proposed location's proximity to residential areas and because
there were no material changes with respect to the proposed location as to any factors warranting the DOR's processing of
Mr. Cameron's application.
8. The proposed location is situated in a mainly residential community located on the shores of Lake Murray.
9. Although the location's proximity to residential areas has not changed, the facility itself has changed significantly. In the
past, there was a small bait shop located on the premises, and prior applicants proposed to add pool tables and gaming
machines to the bait shop. While licensed in the 1970's and 1980's, the location was a hangout for an element inconsistent
with the residential nature of the area. The Petitioner has since changed the character of the business. In contrast to what it
was before, the Petitioner has expanded and improved the facility and turned it into a family-oriented business. Incorporated
in the complex with the restaurant is a convenience-type store catering to the needs of the surrounding community as well as
to the boating public. The general thrust of the location is now a restaurant in which the serving of beer and wine may be
found to be compatible with the area. As opposed to what was once a nuisance and a detriment to the community, the
location in a future proceeding could be found to be a suitable and proper one.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law:
1. The Administrative Law Judge Division has subject matter jurisdiction of this case pursuant to S. C. Code Ann. § 61-2-260 (Supp. 1998) and S. C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1998).
2. Pursuant to S. C. Code Ann. § 61-2-260 (Supp. 1998), the ALJD is responsible for determining contested matters
governing alcoholic beverages, beer, and wine.
3. The DOR shall not process an application for a beer and wine permit when the location involved has been declared by the
ABC Commission to be improper unless and until the applicant can affirmatively show that some material change with
respect to the location has occurred. 23 S.C. Code Ann. Regs. 7-96 (1976).
4. A "material change" is any meaningful change to any factor relevant to the question of whether the location for a beer and
wine permit is a proper location. S.C. Code Ann. § 61-4-520(6) and (7) (Supp. 1998). Any factor showing community
impact should be considered. Palmer v. S. C. Alcoholic Beverage Control Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
5. There are no material changes with respect to the proposed location's proximity to residential areas.
6. There are sufficient material changes with respect to the proposed location as to other factors to warrant processing the
Petitioner's application.
7. By this Order, no Finding or Conclusion is being made as to the fitness and/or suitability of the proposed business of the
Petitioner for a permit to sell beer and wine. In a subsequent proceeding, the proposed location may still be found not to be
a fit and suitable one for the sale of beer and wine because of, among other factors, the rural residential nature of the
surrounding community; the close proximity of residences, a school, and a church; the absence of any other licensed
locations in the immediate vicinity; the presence of students and small children in the area; and the overall adverse impact on
the community.
8. The only issue being decided in this contested case is that the Petitioner has shown a material change to warrant
processing of the application by the DOR.
ORDER
IT IS THEREFORE ORDERED that the South Carolina Department of Revenue shall process the application filed by the
Petitioner for an on-premises beer and wine permit for the location at 1701 Dreher Island Road, Chapin, South Carolina.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
Administrative Law Judge
September 24, 1999
Columbia, South Carolina |
