South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
What’s Up, Inc., d/b/a What’s Up vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
What’s Up, Inc., d/b/a What’s Up
104 Cherry Street, Seneca, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0487-CC

APPEARANCES:
E. Delane Rosmond, Esquire, for the Petitioner

Carol I. McMahan, Esquire, for the Respondent

Capt. Frank Gies, Protestant
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-2-160 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2001) for a hearing on the application of What’s Up, Inc., d/b/a What’s Up. Petitioner seeks an on-premises beer and wine permit and a sale and consumption (minibottle) license for a proposed private club located at 104 Cherry Street, Seneca, South Carolina. After timely notice to the parties and Protestant, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina on March 13, 2003. The issues considered at the hearing were Protestant’s concerns regarding the suitability of the location of a club for the on-premises sale and consumption of alcohol in light of previous trouble at the location.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, 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.Petitioner seeks an on-premises beer and wine permit and sale and consumption (mini-bottle) license for a non-profit, private club located at 104 Cherry Street., Seneca, South Carolina. The business is situated in a commercial area.

2. What’s Up, Inc. is a nonprofit corporation having filed its Articles of Organization on August 20, 2002. Charles W. Gilmore, the principal for What’s Up, Inc. in whose name the license will be held, is at least twenty-one years of age, a U.S. citizen, is of good moral character, and has maintained his principal place of residence in the State for at least thirty days prior to the date of making application for a sale and consumption license. He has not had a beer and wine permit or an alcoholic liquor license revoked within two years of the date of the application.

3. Charles W. Gilmore is the President of What’s Up, Inc. and intends to run the club.

The State Law Enforcement Division (SLED) completed a criminal background investigation of the individuals, and the search did not uncover any record in the name of Charles W. Gilmore. Mr. Gilmore was previously licensed to sell alcohol, but voluntarily surrendered that license.

4. Notice of the application appeared in the Daily Journal on June 4, 11, 18, 2002. The

Daily Journal is published and issued in the area of the proposed business. Petitioner also displayed a sign for fifteen days at the site of the proposed business.

5. Captain Gies’ protest was received by the Department on September 9, 2002. He

is concerned that the proposed location is inappropriate for an on- premises beer and wine permit and sale and consumption license in light of the extensive record of previous trouble in the area around the proposed location. The Protestant states that the police department would not have sufficient manpower to address the problems that would occur at the establishment if the pattern of violations continues. He is especially concerned about the lack of parking and complaints of loud noise from an adjacent building. Captain Gies’ concerns primarily relate to the adjacent building, and to the possibility of problems at this location. The Petitioner’s club will not be large enough to have a large party or dance floor. In addition, it will be a private club which will control its members and their conduct.

6.Mr. Gilmore testified that both the adjacent L’il Cricket convenience store and Brock’s

Car Repair across the street have offered extra parking spaces for him, and that he will not have any bands or DJ’s at the club.


CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:

1.S.C. Code Ann. § 61-2-260 (Supp. 2001) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this case.

2.S.C. Code Ann. §61-4-520 (Supp. 2001) establishes the criteria for determining eligibility for a beer and wine permit.

3.Although “proper location” is not statutorily defined, broad discretion is vested in the Administrative Law Judge Division as the finder of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 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); Schudel v. South Carolina ABC Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

4.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 alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).

5.The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Court. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Court. App. 1984).

6.I find the location to be suitable for the issuance of a beer and wine permit and a minibottle license due to the commercial nature and array of businesses in the area in which it is to be situated.

7.Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit and sale and consumption license by a private, non-profit club. See 23 S.C. Code Ann. Regs. 7-17 et seq (2002). The Department shall issue an on-premises beer and wine permit and mini-bottle license to Petitioner.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ORDERED that the application of the Petitioner for an on-premises beer and wine permit for the establishment located at 104 Cherry Street., Seneca, South Carolina be GRANTED.

AND IT IS SO ORDERED.

______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

May 27, 2003

Columbia, South Carolina


 

 

 

 

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