ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S. C. Code Ann. § 61-4-520 (Supp. 1999) and S. C. Code Ann. §
61-4-525 (Supp. 1999) following the Petitioner's request for a contested case hearing. The Petitioner,
Sonya Ottley d/b/a Special Occasions, seeks an on-premises beer and wine permit for an establishment
located at 112 Broad Street, Bamberg, South Carolina. After the Protestant filed a written protest with the
South Carolina Department of Revenue ("DOR"), and upon the Petitioner's request, this matter was
transmitted by the DOR to the Administrative Law Judge Division ("ALJD") for a hearing. A hearing was
held on February 17, 2000 at the ALJD in Columbia, South Carolina. Any issues raised in the proceedings
or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(C).
FINDINGS OF FACT
Having carefully considered the testimony and the arguments, and taking into account the credibility of the
evidence, I find by a preponderance of the evidence:
1. The Petitioner, Sonya Ottley, d/b/a Special Occasions, seeks an on-premises beer and wine permit for an
establishment located at 112 Broad Street, Bamberg, South Carolina in Bamberg County.
2. The parties and the Protestant received notice of the time, date, place, and subject matter of this hearing.
The Protestant did not move to intervene.
3. The Protestant challenged the suitability of the location.
4. The Protestant, the City of Bamberg, through Mr. Watson, the Clerk/Treasurer and Licensing Agent,
testified that the City had many problems with this location when it was licensed from 1983 to 1987. Two
citations and one warning were issued during those years for violation of the Alcoholic Beverage Control
laws. The permittee at that time was the father of the current applicant.
Mr. Watson testified that one of the concerns of the City was that Ms. Ottley was attempting to obtain the
beer and wine permit for the use and benefit of her father who is unable to obtain a Business License from
the City.
Mr. Watson further testified that the City of Bamberg first granted a Business License to Ms. Ottley with the
stipulation that she not serve beer, wine, or liquor at this location. A second
Business License (or renewal of the first) was granted to Ms. Ottley, but it does not contain the
stipulation because the downtown area of the City of Bamberg has been rezoned, and
beer, wine, and/or liquor can only be served in full-service restaurants in the section in which
Ms. Ottley's business is located. Ms. Ottley does not have a full-service restaurant, and her location is used
strictly for socializing.
5. There are no churches, schools, or playgrounds in close proximity to the proposed location.
CONCLUSIONS OF LAW
Based on these Findings of Fact, I conclude:
1. The ALJD has subject matter jurisdiction in this matter pursuant to Chapter 23 of
Title 1 of the 1976 Code, as amended.
2. Under S. C. Code Ann. § 61-4-520 (Supp. 1999), no beer and wine permit may be granted unless the
location of the place of business is suitable. Although proper location is not statutorily defined, broad
discretion is vested in the ALJD to determine the suitability of a particular location. See Fast Stops, Inc. v.
Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Byers v. South Carolina ABC Comm'n. 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984).
3. The determination of suitability "involves an infinite variety of considerations related to the nature and
operation of the proposed business and its impact on the community within which it is to be located."
Kearney v. Allen, 287 S.C. 324, 326-27, 338 S.E.2d 335, 337 (1985) (citations omitted). The determination
is not solely a function of geography.
4. In general, consideration may be given to any factor demonstrating the adverse effect
the proposed location will have on the community. Palmer v. South Carolina ABC Comm'n, 282 S.C.246,
317 S.E.2d 476 (Ct. App.1984), including the location's proximity to a church, school, or residence. S. C.
Code Ann. § 61-4-520(7) (Supp. 1999).
5. Unless there is sufficient evidence of an adverse impact on the community, the application must be
granted if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is
not sufficient reason by itself to deny the permit. See 45Am.Jur.2d Intoxicating Liquors § 162 (Supp. 1995).
Although the Protestant referenced problems which the City of Bamberg had when the location was
previously licensed, the ALJD notes those problems occurred over twelve years ago. The Protestant alleges
that because the current applicant assisted her father when he held the permit from 1983 through 1987 that
she will run the business as he did and that the City will have the same type of problems it had before. The
applicant testified that she was only eighteen or nineteen years of age when her father had the business and
that she only helped him a few times at this location. There was no evidence that law enforcement could not
provide sufficient protection at the location. If the business at this location is operated properly, there should
be no negative impact upon the community.
6. Permits and licenses by the State for the sale of beer and wine are not rights or property, but rather are
privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the
restrictions and conditions governing them are complied
with. As the tribunal authorized to grant the issuance of a permit, this tribunal is likewise authorized to place
conditions or restrictions on the permit, for cause. See Feldman v. S.C. Tax
Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
7. Standards for judging the suitability of a proposed location for the sale of beer and wine are not
determined by the local community. Criteria must be uniform, objective, constant and consistent throughout
the State of South Carolina. The sale of beer and wine is a lawful
enterprise in South Carolina and is regulated by the State.
DISCUSSION:
Because the Protestant, the City of Bamberg, expressed concern that Ms. Ottley is seeking this permit for
the use and benefit of her father, Ms. Ottley was agreeable to having a stipulation placed on the permit, if
granted by the ALJD, that her father not be allowed on the premises during the time the location is open for
business.
In addition, Mr. Watson, on behalf of the Protestant, testified that Ms. Ottley obtained her City Business
License upon the stipulation that no beer, wine or liquor be served on the premises. As Ms. Ottley testified
before the ALJD, after she determined that it was not financially feasible for her to continue the business
without a beer and wine permit, she applied to the South Carolina Department of Revenue for an on-premises beer and wine permit. By this time, her original Business License had been renewed (said licenses
are renewable every year) without discussion about the stipulation. It is the position of the City of Bamberg
that Ms. Ottley had agreed she would not serve beer, wine or liquor at the location and that she violated that
agreement by seeking an on-premises beer and wine permit from the South Carolina Department of Revenue.
Mr. Watson, on behalf of the Protestant, City of Bamberg, testified that the downtown area of the City had
been rezoned and that the site of Ms. Ottley's location, 112 Broad Street, is in an area where on-premise sale
of beer and wine is permitted only at full-service restaurants and that the issuance of a beer and wine permit
for the location would put Ms. Ottley in violation of the zoning laws of the City of Bamberg.
After considering all of the relevant factors, I find that pursuant to the guidelines of the Alcoholic Beverage
Control laws, the location is suitable for licensing. Although there have
been problems at the proposed location in the distant past, there is not sufficient evidence upon which to
now deny a business opportunity for someone else. However, in order to alleviate some of the concerns of
the City of Bamberg, I find it necessary to place two stipulations on the permit, both of which have been
agreed to by the Petitioner. The ALJD is aware that many problems often arise at this type of location long
after the business has "closed" because some customers tend to linger. Therefore, Petitioner must make
every effort to clear the premises of patrons within one hour after closing time. Further, Raymond H. Ottley,
father of Petitioner, shall not be permitted on the premises at any time when patrons are on the premises.
The ALJD is without jurisdiction to decide whether or not the Petitioner will be in violation of the zoning
laws of the City of Bamberg upon the issuance of the on-premises beer and wine permit. Consequently, that
determination will have to be made by another tribunal.
ORDER
Based on the foregoing Findings of Fact and Discussion, and Conclusions of Law, the following ORDER is
issued:
The Department of Revenue shall continue processing the Petitioner's application for an
on-premises beer and wine permit for the establishment at 112 Broad Street, Bamberg, South Carolina. The
permit shall be subject to the following stipulations:
1. The permit holder, Sonya Ottley, shall make every effort
to have the premises cleared of patrons within one hour
after closing time.
2. Raymond H. Ottley shall not be permitted on the premises
at any time when patrons are on the premises.
Any violation of the above stipulations is grounds for immediate revocation of the permit without
further appeal.
AND IT IS SO ORDERED.
______________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
February 29, 2000
Columbia, South Carolina |
