Licenses & Permits – Beer & Wine Permit – Restrictive Covenant – Suitable Location

The ALC properly refused to consider the existence of a restrictive covenant in determining whether to grant the respondent’s petition for a beer and wine permit since restrictions in the chain of title of a proposed location are not a legitimate concern of the ALC in determining whether the location is suitable, the Court of Appeals ruled in SGM-Moonglo, Inc. v. S.C. Dept. of Revenue (Lawyers Weekly No. 011-102-08) (4 pages).
Background
In 1975, Marjorie Smith sold a tract of real property to Virginia Miller. Smith’s deed to Miller contained a restrictive covenant prohibiting the sale of alcoholic beverages on the premises. Moonglo purchased the property in August 2006, and operates a truck stop on the property. Moonglo applied to the South Carolina Department of Revenue for an off-premises beer and wine permit. After several area residents filed protests, DOR denied the application. Moonglo then requested a contested case hearing before the ALC.
Prior to the hearing, the ALC granted Smith’s motion to intervene to enforce the restrictive covenant. After a hearing, the ALC granted Moonglo an off-premises beer and wine permit, finding the property was a suitable location and Moonglo met all applicable statutory requirements for obtaining the permit. The ALC held it did not have jurisdiction to enforce a restrictive covenant because its jurisdiction was limited to whether a proposed location meets the criteria established by statute and case law. This appeal followed.
Discussion
Smith argues the ALC should have considered the existence of the restrictive covenant as a factor in determining whether to grant Moonglo’s petition for a beer and wine permit. Smith contends the truck stop is not a suitable location for a permit because the restrictive covenant prohibits the sale of alcohol on the property.
S.C. Code Ann. Sect. 1-23-610 (Supp. 2006) sets forth the applicable standard of review when the Court of Appeals sits in review of a decision by the ALC.
An administrative agency has only the powers conferred on it by law and must act within the authority created for that purpose. Pursuant to S.C. Code Ann. Sect. 61-4-520 (Supp. 2006), the ALC must determine whether a proposed location is proper and suitable prior to granting an off-premises beer and wine permit. Restrictions in the chain of title of a proposed location, however, are not a legitimate concern of the ALC in determining whether the location is suitable. Accordingly, the ALC did not err in refusing to consider the existence of the restrictive covenant.
SGM-Moonglo, Inc. v. S.C. Dept. of Revenue (Lawyers Weekly No. 011-102-08) (4 pages) (Goolsby, A.J.) (SCCOA) Appealed from the Administrative Law Court, Marvin F. Kittrell, J.; James R. Snell Jr. for appellant; Robert L. Jackson, Thomas A. McDermott, Ray N. Stevens, Harry T. Cooper Jr. and Nicholas P. Sipe for respondents (No. 4390) (May 15, 2008).