South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Ju Shin Park, d/b/a Charlie's vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Appellant:
Ju Shin Park, d/b/a Charlie's

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-0004

APPEARANCES:
n/a
 

ORDERS:

ORDER AND DECISION

The sole issue presented in this contested case hearing is whether there has been a material change in the location for which applicant applied for an on-premises beer and wine permit for the Department of Revenue and Taxation (Department) to proceed in reviewing the application.

FINDINGS OF FACT

The applicant, Ju Shin Park applied for an on-premises beer and wine permit for an establishment he rents known as "Charlie's" at 2708 Rosewood Drive in Columbia. The application was dated October 6, 1993 and upon receipt, the Department conducted an investigation. With the exception of the map drawn by the S.C. Law Enforcement agent, the Department file was incorporated into the record of this case with a copy substituted for the original.

On November 16, 1993, the Department informed the applicant that the Alcoholic Beverage Control Commission (Commission) previously denied an application for a permit and license at this location upon finding that the location was unsuitable for the sale of alcoholic beverages. Applicant was informed that no further consideration would be given to his application unless "evidence of substantial material change in the location" was provided. This evidence, the Department stated, "may include physical changes in the area, and should include the withdrawal of the previous protests."

Applicant submitted a letter to the Department indicating what he considered to be changes in the location, which were a list of businesses in the immediate vicinity issued licenses for on-premises consumption of beer, wine, or alcoholic liquors after the denial of the previous application for Charlie's and a statement that one of the protestants in the previous application had sold his property adjacent to Charlie's. On January 21, 1994, the Department notified applicant that his application was denied and the procedure for requesting a hearing on the issue of "material change". Applicant thereafter requested a hearing.

The Commission denied an application to Mr. Patrick Huggins for the same location in March 1992. At that time the protestants were Rev. Frank Keels, pastor of Rosewood Baptist Church; Michael Dickson, owner of the Montessori School; and Joe Drawdy, an adjacent property owner.

A tax map of the area, introduced into evidence, shows the locations where alcoholic beverage permits are currently in effect and those which were issued since the Commission's ruling in 1992. Licenses have been issued or are currently in effect at Rockaway Athletic Club, Nikki D's, Pizza Man, and Party Town liquor store. Of the three locations with on premises licenses only Rockaway Athletic Club had a license before March 1992.

The Pizza Man is located on the opposite side of Rosewood Drive from Charlie's on the corner of Rosewood and Woodrow Street approximately one block closer to the Montessori School. Nikki D's is located on the same side of Rosewood Drive as Charlie's one block closer to the Rosewood Baptist Church. Rockaway Athletic Club is directly across the street from Charlie's on Rosewood Drive.

Nikki D's is no longer in business. The Montessori School withdrew its protest against the Pizza Man. Basil Garzia with the Rosewood Market who appeared at the hearing to protest this application did not protest the application of locations on Rosewood Drive closer to the Rosewood Market.

This area of Rosewood Drive is a mix of residential and commercial establishments. The changes in the area have been positive in nature with the recent regulation on the video poker industry which caused a significant reduction in the number of video poker businesses on Rosewood Drive. Only one video poker location exists in the immediate area of Charlie's. There has been an increase in the number of neighborhood oriented businesses.

Although the owner of the Montessori school testified that patrons of Charlie's in the past caused damage to and litter on the school property, I find no credible evidence to show that the problems previously experienced in the area have continued and no evidence was presented to show problems occurring in the last two years.

A hand drawn map of the area and the location of places that are applying for a license from the Department were introduced by the school to establish that the area is saturated. I find this evidence to be speculative since the businesses have not been granted a license and the Department is not required to issue a license to these locations. Less weight is accorded to this exhibit on that issue.

Other exhibits introduced into evidence were documents showing the issuance of a license to Nikki D's and Pizza Man; and pictures taken by a member of the church showing the view from the church toward Charlie's, the view from Charlie's to the church, and the exterior of Charlie's and the parking lot.

CONCLUSIONS OF LAW

The Administrative Law Judge Division is vested with the powers, duties and responsibilities exercised by the former Alcoholic Beverage Control Commission (Commission) and hearing officers pursuant to Chapter 23 to Title 1. S.C. Code of Laws § 61-1-55 (Cum. Supp. 1993). Commission Regulation 7-96 states:

The Alcoholic Beverage Control

Commission will not hear an application for a

retail beer and wine permit or an application

for a retail off-premise beer permit when the

location involved has been declared by the

Alcoholic Beverage Control Commission to be

improper unless and until the applicant can

affirmatively show that some material change

with respect to the location has occurred, or

unless otherwise ordered by the Alcoholic

Beverage Control Commission.

Pursuant to the Government Restructuring Act of 1993 (Act 181 of 1993), all regulations promulgated by the Commission effective on the date of the act remain in force until modified or rescinded by the Department or the State Law Enforcement Division. 1993 Act No. 181, § 1604.

It is the fact finder's duty to judge the demeanor and credibility of the witnesses and to determine the relevance and weight to be accorded to the testimony and evidence offered.

The regulation relied on by the Department does not assist this court in making a ruling. It does not provide any factors the Department may consider in determining what is a "material change with respect to the location". Unfortunately, there has been no judicial interpretation of this regulation to guide the court in this matter.

The Department in its letter to applicant does mention some of the factors it would consider but upon review of the Department's file made a part of the record in this case, a memorandum reveals that those factors were not the only ones considered. In an internal memorandum dated January 14, 1994, a representative of the Department wrote, "The real issue does not appear to be the number of beer, wine and liquor licenses in the area but rather the disruptive influence this location previously had on the neighborhood and the type clientele it attracted." No evidence exists in the record to indicate that the applicant had knowledge that the Department would consider factors other than the changes in the physical location and whether any protests were withdrawn. To allow the Department to base its decision on factors other than those expressed by it in its letter without notice to the applicant raises questions of fairness and prejudices the right of applicant to adequately present his case.

The evidence in the record demonstrates that additional licenses have been issued in this neighborhood, some of which have been protested and some of which have not. An adjacent property owner who previously opposed the issuance of the license is not currently protesting the issuance of a license to Charlie's. There is a reduction of the number of video poker shops in the area that may have contributed to some of the undesirable activity. There is no evidence of continued criminal activity in the past two years. The applicant has established by a preponderance of the evidence a "substantial material change in the location" and is entitled to consideration of the merits of his application. It is therefore,

ORDERED that the Department proceed with the processing of the application based upon the applicant's merits.

__________________________

ALISON RENEE LEE

Administrative Law Judge

Columbia, South Carolina

May __, 1994.


 

 

 

 

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