ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 12-60-1310, 12-60-1320, 61-6-1510, 61-6-185, 61-4-520
(Supp. 1998) and 23 S.C. Code Ann. Regs. 7-96 (1976) upon a request for a contested case hearing. The Respondent,
South Carolina Department of Revenue ("DOR"), declined to process the application for an on-premises beer and wine
permit submitted by Petitioner, Herbert Davis, d/b/a 49er Diner, 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. This matter was transmitted to the Administrative Law Judge Division ("ALJD") for a hearing. A hearing was
held on September 30, 1999, at the ALJD in Columbia, South Carolina.
Having closely observed and examined the credibility of the witnesses and exhibits presented and taking into consideration
the burden of persuasion on the Petitioner, I find that the Petitioner has shown no material change with respect to the
proposed location. Accordingly, I conclude that the DOR is not required to process the Petitioner's application for a beer
and wine permit.
FINDINGS OF FACT
1. All parties were given notice of the time, date, and place of the hearing.
2. The Petitioner held a license to sell beer and wine at the proposed location, 2200 Lyttleton Street, Camden, South
Carolina, from approximately 1978 until 1997.
3. In 1997, the Petitioner applied to renew his on-premises beer and wine permit. The DOR determined that the proposed
location was unsuitable. After a hearing, Judge Bates also found the location unsuitable. See Herbert Davis, d/b/a 49er
Disco Diner v. South Carolina Department of Revenue, Docket No. 97-ALJ-17-0724-CC. After first finding that the
proposed location is in a residential area, Judge Bates found that the Petitioner is unable to adequately control the activities
on the premises, including criminal activity and excessive noise.
4. Although much of the testimony focused on the suitability of the location, that is not the issue to be addressed in this
proceeding. The only issue in this case is whether the Petitioner has demonstrated that a material "change of condition" has
occurred since the decision of Judge Bates. See 23 S.C. Code Ann. Regs. 7-96 (1976).
5. Following an investigation conducted at the request of the DOR upon receiving the application, Agent Ashford
determined that no material change had occurred. The Petitioner then sought a hearing before this tribunal.
6. The Petitioner has rebuilt the building's front porch and painted the building, and the property surrounding the proposed
location has been cleaned; however, these changes do not affect the previous findings by Judge Bates regarding the
residential nature of the area and the crime occurring in and near the proposed location resulting in a burden on law
enforcement.
7. Notwithstanding the Petitioner's assertions that he is unable to control occurrences outside of his building and is not
responsible for such, the area immediately surrounding the building, including the parking area, is considered a part of the
licensed premises. See 23 S.C. Code Ann. Regs. 7-81 (1976).
8. The Petitioner has not shown a material change on the impact to the neighborhood or on the burden to law
enforcement.
9. The Camden Police Department continues to object to this application citing prior incidents at the proposed
location and fear that such incidents would begin anew if the proposed location was again licensed.
CONCLUSIONS OF LAW
Based upon these 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. The pertinent regulation provides:
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.
23 S.C. Code Ann. Regs. 7-96 (1976).
3. The DOR may not process an application for a beer and wine permit when the location involved has been declared 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. "The department may consider, among other factors, as indications of unsuitable location,
the proximity to residences, schools, playgrounds, and churches." See S.C. Code Ann. § 61-4-520 (7) (Supp. 1998). Any
factors showing community impact should be considered. See Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984).
5. The following provision defines the physical area that is included as part of the licensed premises:
Licensed premises shall include those areas normally used by the permittee or licensee to conduct his business and shall
include but are not limited to the following: selling areas, storage areas, food preparation areas and parking areas.
23 S.C. Code Ann. Regs. 7-81 (1976).
6. There are no material changes with respect to the proposed location's proximity to residential areas nor are there any other
factors which would warrant the processing of the Petitioner's application.
7. This issue of a permit for a probationary period as suggested by the Petitioner is not properly before this tribunal.
ORDER
IT IS THEREFORE ORDERED that the DOR shall not process the application filed by the Petitioner for an on-premises
beer and wine permit for the location at 2200 Lyttleton Street, Camden, South Carolina.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
Post Office Box 11667
Columbia, South Carolina 29211-1667
October 1, 1999
Columbia, South Carolina |
