South Carolina General Assembly
116th Session, 2005-2006

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H. 3804

STATUS INFORMATION

General Bill
Sponsors: Rep. Kirsh
Document Path: l:\council\bills\bbm\10735mm05.doc

Introduced in the House on March 29, 2005
Currently residing in the House Committee on Judiciary

Summary: Beer, wine or alcoholic liquor

HISTORY OF LEGISLATIVE ACTIONS

     Date      Body   Action Description with journal page number
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   3/29/2005  House   Introduced and read first time HJ-13
   3/29/2005  House   Referred to Committee on Ways and Means HJ-14
   3/14/2006  House   Recalled from Committee on Ways and Means HJ-43
   3/14/2006  House   Referred to Committee on Judiciary HJ-43

View the latest legislative information at the LPITS web site

VERSIONS OF THIS BILL

3/29/2005

(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 61-2-136 SO AS TO REQUIRE A CURRENTLY LICENSED BEER AND WINE WHOLESALER OR AN ALCOHOLIC LIQUOR WHOLESALER TO NOTIFY THE DEPARTMENT OF REVENUE IN WRITING WHEN RELOCATING THE BUSINESS TO A NEW LOCATION, TO PRESCRIBE THE DETAILS THAT MUST BE INCLUDED IN THE WRITTEN NOTICE, AND TO DIRECT THE DEPARTMENT OF REVENUE TO TRANSFER THE PERMIT TO THE NEW PREMISES; TO AMEND SECTION 61-2-100, AS AMENDED, RELATING TO LICENSEES AND PERMITTEES UNDER TITLE 61, BY REQUIRING THAT A WHOLESALE LICENSEE OR PERMITTEE BE A LEGAL RESIDENT OF THE UNITED STATES AND LIVING IN THIS STATE FOR THIRTY DAYS AND BY, FURTHER, ALLOWING DENIAL OR REVOCATION OF A LICENSE OR PERMIT RESULTING FROM A MISSTATEMENT OR CONCEALMENT; TO AMEND SECTION 61-2-160, RELATING TO THE PROHIBITION ON ISSUING, RENEWING, OR TRANSFERRING AN ALCOHOL LICENSE OR PERMIT UNTIL IT IS DETERMINED THAT THE APPLICANT DOES NOT OWE THE STATE OR FEDERAL GOVERNMENT DELINQUENT TAXES, SO AS TO DELETE THE REFERENCE TO TAXES OWED TO THE FEDERAL GOVERNMENT SO THAT THE PROHIBITION APPLIES ONLY TO THOSE WHO OWE DELINQUENT STATE TAXES; TO AMEND SECTION 61-4-10, RELATING TO DEFINITION OF NONALCOHOLIC BEVERAGES, SO AS TO RAISE THE MAXIMUM PERCENTAGE FROM FIVE TO FOURTEEN PERCENT; TO AMEND SECTION 61-4-520, RELATING TO CONDITIONS FOR APPLICATIONS, SO AS TO RELATE IT TO RETAIL PERMITS ONLY; TO AMEND SECTION 61-4-525, RELATING TO PROTEST OF DENIAL OF PERMIT, SO AS TO REFER TO A RETAIL BEER AND WINE PERMIT; TO AMEND SECTION 61-6-4310, RELATING TO SALE OF SEIZED ALCOHOLIC LIQUORS, SO AS TO PROVIDE FOR SALE SEIZED ITEMS BY THE SOUTH CAROLINA LAW ENFORCEMENT DIVISION; TO AMEND SECTION 61-6-1540, RELATING TO NONALCOHOLIC MERCHANDISE, SO AS TO PROVIDE THAT WINE WITH A PERCENTAGE OF ALCOHOL IN EXCESS OF SIXTEEN PERCENT MAY BE SOLD ONLY IN A LICENSED LIQUOR STORE OR A SITE PERMITTED FOR ON-PREMISES CONSUMPTION OF ALCOHOLIC LIQUOR; TO AMEND SECTIONS 12-60-510 AND 12-60-1330, BOTH AS AMENDED, AND BOTH RELATING TO CONTESTED CASE HEARINGS AFTER EXHAUSTION OF ADMINISTRATIVE REMEDIES, BOTH SO AS TO PROVIDE FOR A DEFAULT IF THE PROTEST IS NOT TIMELY FILED WITH THE DEPARTMENT; AND TO REPEAL SECTION 61-6-1520, RELATING TO PRICE DISPLAYS OF ALCOHOLIC BEVERAGES.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    A.    Chapter 2, Title 61 of the 1976 Code is amended by adding:

"Section 61-2-136.    Notwithstanding another provision of law, a currently licensed beer and wine wholesaler or currently licensed alcoholic liquor wholesaler who wishes to relocate the licensed business to a new location within the State must notify the department. This notice must be in writing, must precisely describe the premises to be licensed, must give the date of the move, and must be filed with the department at least thirty days prior to the move. Upon receipt of this notice, the department shall transfer the permit to the new premises effective on the date of the move."

B.    This section takes effect on the first day of the third month following approval by the Governor.

SECTION    2.    Section 61-2-100 of the 1976 Code, as last amended by Act 442 of 1998, is further amended by adding appropriately numbered subsections at the end to read:

"(I)    The department may not issue a wholesale beer and wine permit pursuant to this title unless the applicant is a legal resident of the United States, and has been a legal resident of this State and has maintained his principal place of abode in this State for at least thirty days before the date of the application.

(J)    A misstatement or concealment of fact on an application for a license or permit pursuant to this title is sufficient grounds for the department to deny the application and to revoke a license or permit issued based on an application containing a misstatement or concealment of fact."

SECTION    3.    Section 61-2-160 of the 1976 Code, as last amended by Act 415 of 1996, is further amended to read:

"Section 61-2-160.    No A license or permit under pursuant to the provisions of this title may must not be issued, renewed, or transferred unless the department and the Internal Revenue Service determine determines that the applicant does not owe the state or federal government State delinquent taxes, penalties, or interest. If the department or the Internal Revenue Service determine determines that delinquent taxes, penalties, or interest are due, the department must shall notify the applicant of the necessary requirements to comply with this section."

SECTION    4.    Section 61-4-10 of the 1976 Code, as added by Act 415 of 1996, is amended to read:

"Section 61-4-10.    All beers, ales, porter, and other similar malt or fermented beverages containing not in excess of five fourteen percent of alcohol by weight and all wines containing not in excess of twenty-one percent of alcohol by volume are declared to be nonalcoholic and nonintoxicating beverages."

SECTION    5.    Section 61-4-520 of the 1976 Code is amended to read:

"Section 61-4-520.    No A retail permit authorizing the sale of beer or wine may must not be issued unless:

(1)    The applicant, any a partner, or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises are of good moral character.

(2)    The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

(3)    The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

(4)    The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

(5)(4)    The applicant is twenty-one years of age or older.

(6)(5)    The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

(7)(6)    The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches. This item does not apply to locations licensed before April 21, 1986.

(8)(7)(a)    Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. The notice must:

(a)(i)    be in the legal notices section of the newspaper or an equivalent section if the newspaper has no legal notices section;

(b)(ii)    be in large type, covering a space of one column wide and at least two inches deep; and

(c)(iii)    state the type license applied for and the exact location of the proposed business.

(b)An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.

(9)(8)    Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a)    state the type of permit sought;

(b)    state where an interested person may protest the application;

(c)    be in bold type;

(d)    cover a space at least twelve inches high and eighteen inches wide;

(e)    be posted and removed by an agent of the division."

SECTION    6.    Section 61-4-525 of the 1976 Code is amended to read:

"Section 61-4-525.    (A)    A person residing in the county in which a retail beer and wine permit is requested to be granted, or a person residing within five miles of the location for which a retail beer and wine permit is requested, may protest the issuance or renewal of the permit if he files a written protest setting forth:

(1)    the name, address, and telephone number of the person filing the protest;

(2)    the name of the applicant for the permit and the address of the premises sought to be licensed, or the name and address of the permit holder if the application is for renewal;

(3)    the specific reasons why the application should be denied; and

(4)    whether or not he wishes to attend a contested case hearing before the Administrative Law Judge Division Court.

(B)    Upon receipt of a timely filed protest, the department shall determine the protestant's intent to attend a contested hearing before the Administrative Law Judge Division Court. If the protestant intends to attend a contested hearing, the department may not issue the permanent permit but shall forward the file to the Administrative Law Judge Division Court.

(C)    If the protestant, during the investigation expresses no desire to attend a contested hearing and offer testimony, the protest is deemed considered invalid, and the department shall continue to process the application and shall issue the permit if all other statutory requirements are met.

(D)    A person who files a protest and fails to appear at a hearing after affirming a desire to attend the hearing may be assessed a fine or penalty to include court costs."

SECTION    7.    Section 61-6-4310 of the 1976 Code is amended to read:

"Section 61-6-4310.    Alcoholic liquors seized by the department, its agents, or by the division must be sold by the department division at public auction to the highest bidder after advertisement. The proceeds of the sale must be turned over to the State Treasurer after first paying the cost of confiscation and sale. Alcoholic liquors seized by a peace officer, except the department, its authorized agents, or other than by the division, must be delivered to the sheriff of the county in which the seizure is made. The sheriff must shall take possession of the alcoholic liquors so seized and sell them at public auction to the highest bidder after advertisement. The proceeds of the sale, after payment of the costs of confiscation and sale, must be immediately turned over immediately to the treasurer of the county in which the seizure was made. However, if a municipal officer makes a seizure, the chief of police must take possession of the alcoholic liquors so seized and sell them at public auction to the highest bidder after advertisement. The proceeds of the sale, after payment of costs of confiscation and sale, must be turned over to the treasurer of the municipality in which the seizure was made. No A sale of alcoholic liquors seized and sold in accordance with the provisions of this section may must not be made to a person other than a licensed manufacturer, wholesaler, or retail dealer."

SECTION    8.    Section 61-6-1540(B) of the 1976 Code is amended to read:

"(B)    Retail dealers licensed under pursuant to the ABC Act may sell all wines in the stores or places of business covered by their respective licenses, whether declared alcoholic or nonalcoholic or nonintoxicating by the laws of this State. Wines containing more than fourteen sixteen percent of alcohol by volume may be sold only in licensed alcoholic liquor stores or in establishments licensed to sell and permit consumption of alcoholic liquors in minibottles. The provisions of this section must do not be construed to amend, alter, or modify the taxes imposed on wines or the collection and enforcement of these taxes."

SECTION    9.    Section 12-60-510 of the 1976 Code, as last amended by Act 69 of 2003, is further amended to read:

"Section 12-60-510.    (A)    Before a taxpayer may seek a contested case hearing before the Administrative Law Judge Division Court, he shall exhaust the prehearing remedy.

(1)    If a taxpayer requests a contested case hearing before the Administrative Law Judge Division Court within ninety days of the date of the proposed assessment without exhausting his prehearing remedy because he failed to file a protest with the department, the administrative law judge shall dismiss the action without prejudice. If the taxpayer failed timely to provide the department with the facts, law, and other authority supporting his position, he shall provide them to the department with the facts, law, and other authority he failed to present to the department earlier. The administrative law judge shall then remand the case to the department for reconsideration in light of the new facts or issues unless the department elects to forego the remand.

(2)    If a taxpayer fails to file a protest with the department within ninety days of the date of the proposed assessment, the taxpayer is in default, and the department must issue an assessment for the taxes. The assessment may be removed by the Administrative Law Court for good cause shown, and the matter may be remanded to the department.

(B)    Upon remand the department has thirty days, or a longer period ordered by the administrative law judge, to consider the new facts and issues and amend its department determination. The department shall issue its amended department determination in the same manner as the original. The taxpayer has thirty days after the date the department's amended determination was sent by first class mail or delivered to the taxpayer to again request a contested case hearing. Requests for a hearing before the Administrative Law Judge Division Court must be made in accordance with its rules. If the department fails to issue its amended department determination within thirty days of the date of the remand, or a longer period ordered by the administrative law judge, the taxpayer can again may request again a contested case hearing. At the new hearing the facts, law, and other authority presented at the original hearing have been presented in a timely manner for purposes of exhausting the taxpayer's prehearing remedy. The statute of limitations remains suspended by Section 12-54-85(G) during this process."

SECTION    10.    Section 12-60-1330 of the 1976 Code, as last amended by Act 69 of 2003, is further amended to read:

"(A)    Section 12-60-1330.    Before a person may seek a determination by an administrative law judge under pursuant to Section 12-60-1320, he shall exhaust his prehearing remedy.

(1)    If a person requests a contested case hearing before the Administrative Law Judge Division Court within ninety days of the date of the denial or proposed suspension, cancellation, or revocation without exhausting his prehearing remedy because he failed to file a protest with the department, the administrative law judge shall dismiss the action without prejudice.

(2)    If the person failed to provide the department within the ninety day time period with the facts, law, and other authority supporting his position, he shall provide them to the department with the facts, law, and other authority he failed to present to the department earlier. The administrative law judge shall then remand the case to the department for reconsideration in light of the new facts or issues unless the department elects to forego the remand.

(3)    If a person fails to file a protest with the department within ninety days of the date of the denial or proposed suspension, cancellation, or revocation, the person is in default, and the department shall deny, suspend, cancel, or revoke the license or permit appropriate. The denial, suspension, cancellation, or revocation of the license or permit may be lifted by the administrative law court for good cause shown, and remand the matter to the department.

(B)    Upon remand the department has thirty days, or a longer period ordered by the administrative law judge, to consider the new facts and issues and amend its department determination. The department shall issue its amended department determination in the same manner as the original. The person has thirty days after the date the department's amended determination was sent by first class mail or delivered to the person to again request a contested case hearing. Requests for a hearing before the Administrative Law Judge Division Court must be made in accordance with its rules. If the department fails to issue its amended department determination within thirty days of the date of the remand, or a longer period ordered by the administrative law judge, the person can again may request again a contested case hearing. At the new hearing the facts, law, and other authority presented at the original hearing have been presented in a timely manner for purposes of exhausting the person's prehearing remedy. The statute of limitations remains suspended by Section 12-54-85(G) during this process."

SECTION    11.    Section 61-6-1520 of the 1976 Code is repealed.

SECTION    12.    Except as provided in SECTION 1B, this act takes effect upon approval by the Governor.

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