ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2002) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner Hitchhiker,
Inc., d/b/a Hitchhiker, (“Petitioner”), a bona fide non-profit organization, for an on-premises beer and
wine permit and a sale and consumption (“minibottle”) license for a location at 421 New Orangeburg
Road, Lexington, South Carolina (“the subject location”). Upon receipt of a written protest to the
application, the South Carolina Department of Revenue (“Department”) transmitted the case to the
Administrative Law Judge Division (“ALJD”) for a hearing. After timely notice to the parties and
the Protestants, a contested case hearing was held on November 24, 2003, at the ALJD in Columbia,
South Carolina. The Department was excused from attending the hearing on the basis of its own
motion. Upon review of the relevant and probative evidence and applicable law, the application for
an on-premises beer and wine permit and the application for a minibottle license is granted. The
Petitioner shall comply with certain restrictions contained herein regarding both applications.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
findings of fact by a preponderance of the evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to all
parties and to the Protestants in a timely manner.
2.Petitioner seeks an on-premise beer and wine permit and a sale and consumption
(“mini-bottle”) license for the subject location of 421 New Orangeburg Road, Lexington, South
Carolina.
3.Petitioner leases the subject location.
4.The subject location has been licensed for on-premise beer and wine and mini-bottle
in the past.
5.The Protestants, Jimmy and Cindy Moore (“Protestants”), wrote a letter to the
Department protesting Petitioner’s application, stating that the location is located directly across the
street from their personal residence and that their property lines run the entire length in front of the
subject location. Protestants stated that the subject location was a private club previously and that
the patrons damaged their property and invaded the privacy of their home.
6.SLED conducted an investigation of the Petitioner’s establishment and determined that
it complied with the applicable law.
7.Protestant Cindy Moore has lived across the road from the subject location for
approximately four years. Since that time there has been trash in her yard, the mailbox has been
knocked over, and she has witnessed males and females urinating and fighting outside the bar.
Patrons of the bar have come to her home and asked for rides, and she has heard music from the bar
in her bedroom. Protestant Jimmy Moore has lived in the residence across the road from the subject
location for approximately ten years.
8.Regina Wangness, a director of the Petitioner, stipulated during the hearing that the
Petitioner would not allow music which can be heard off the premises of the subject location and
would not have live bands. Ms. Wangness stated that she will not allow the subject location to be
operated in a manner which would disturb the neighbors and that will provide her telephone number
to them so they can call her.
9.The area around the subject location today is of the same character as it was when the
subject location was previously licensed.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann.
§ 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters
governing alcoholic beverages, beer and wine.
2.S.C. Code Ann. § 61-4-520 (Supp. 2002), which sets forth the requirements for the
issuance of a beer and wine permit, provides in part:
No permit authorizing the sale of beer or wine may be issued unless . . .
(6) The location of the proposed place of business of the applicant
is in the opinion of the department a proper one.
(7)The department may consider, among other factors, as indications of
unsuitable location, the proximity to residences, schools, playgrounds and
churches.
S.C. Code Ann. § 61-4-520 (6), (7) (Supp. 2002).
3.The Department may issue a mini-bottle license upon finding that “[t]he applicant is
a bona fide nonprofit organization . . . .” S.C. Code Ann. § 61-6-1820(1) (Supp. 2002).
4.S.C. Code Ann. § 33-31-101, et seq., (Supp. 2002) and 23 S.C. Code Ann. Regs. 7-17
(Supp. 2002) set forth the criteria for a bona fide nonprofit corporation to be eligible for a mini-bottle
license.
5.Although “proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). 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
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, 338 S.E.2d 335 (1985). Any evidence adverse to the location may
be considered. The proximity of a location to a church, school or residences is a proper ground by
itself upon which the location may be found to be unsuitable and a permit denied. Byers v. S. C. ABC
Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there have
been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984).
6.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).
7.Permits issued by the State for the sale of beer and wine are not rights or property,
but are rather 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 is also authorized, for cause, to revoke it, that
tribunal is likewise authorized to place restrictions or conditions on the permit. See Feldman v. S.C.
Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
8.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v.
S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an
administrative law judge is authorized to determine the fitness or suitability of the proposed business
location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion.
Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the
fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the
relevance and weight of any testimony and evidence offered. A violation of any regulation or section
of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the permit
pursuant to S.C. Code Ann. §§ 61-4-580, 61-6-100, and 61-6-1830 (Supp. 2002).
9. Petitioner meets all statutory requirements for a beer and wine permit and a sale and
consumption license.
10. Pursuant to the South Carolina Supreme Court’s decision in Taylor v. Lewis, 261 S.C.
168, 198 S.E.2d 801 (1973), an application for a location which has previously been licensed must
not be denied unless it is shown that the location is now less suitable than when it was when
previously licensed. Based on the evidence submitted at the hearing, I conclude that there has not
been a showing that the location is any less suitable for a beer and wine permit and minibottle license
now than it was when its last application for a permit and license was granted.
11. At least some of the issues raised by the Protestants are essentially zoning issues. The
ultimate purpose of zoning is to confine certain classes of buildings and uses to certain localities.
101A C.J.S. Zoning and Land Planning § 101 (1979). Such authority is vested solely in the local
government.
12.I find that, based on the holding of the Supreme Court in Taylor v. Lewis, the
application for an on-premises beer and wine permit and the application for a minibottle license must
be granted because there has been no showing that the subject location is any less suitable today than
when it was last licensed. The Petitioner shall comply with the following restrictions regarding both
applications:
(1)The Petitioner shall not allow live bands to play music on the premises of the subject
location; and
(2) The Petitioner shall not allow music to be played that can be heard beyond the
property boundaries of the subject location.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner’s application for an on-premises beer and
wine permit for the location at 421 New Orangeburg Road, Lexington, South Carolina, is granted;
IT IS FURTHER ORDERED that the Petitioner’s application for a minibottle license for
the location at 421 New Orangeburg Road, Lexington, South Carolina, is granted.
IT IS FURTHER ORDERED that the Petitioner shall comply with the restrictions set forth
above regarding both the on-premises beer and wine permit and the minibottle license;
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
November 25, 2003
Columbia, South Carolina |
