SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310 et seq. upon renewal applications for on-premises beer and wine permit and minibottle license for 778 Folly Road, Charleston, South Carolina, by Albert J. Gobel, Barbert Corporation, d/b/a Malibu Restaurant and Lounge filed with the Department of Revenue and Taxation (DOR). A hearing was requested and was held on Friday, May 6, 1994, in accordance with the Administrative Procedures Act with notice to all parties and SLED. The issue considered was the removal of a restriction on the permit that the wife of the permittee, Barbara Gobel, not be employed nor perform any acts consistent with that of an employee on the licenced premises. The applicant was present at the hearing and Barbara Gobel was the sole witness. SLED Agent Ann Reese was present but did not testify. No protestants appeared. DOR is ordered to issue the renewal permit/license with the restriction removed.

The applicant seeks the renewal of an on-premises beer and wine permit (BW 417361, AI 922133) and minibottle license (SB 417362, AI 92134), with removal of the restriction that Barbara Gobel not be employed at the location for Malibu Restaurant and Lounge at 778 Folly Road, Charleston, South Carolina, having filed renewal applications with DOR on February 23, 1994.

Applicant was originally issued an on-premises beer and wine permit and minibottle license on December 10, 1992 after submitting a written voluntary restriction/condition agreement that "BARBARA GOBEL WILL NOT BE EMPLOYED ON THE LICENSED PREMISES OR PERFORM ANY ACTS CONSISTENT WITH THOSE OF AN EMPLOYEE." Applicant sought an immediate hearing from the ABC Commission to show cause why the restriction should not be imposed, however. The hearing request was denied by the ABC Commission on December 17, 1992, and the applicant was informed that he may petition for a hearing for removal of the restriction after twelve months. Pursuant to the ABC Commission's requirement that the applicant wait twelve months to request a removal of the restriction, the applicant requested this hearing on February 21, 1994.

The issuance of the permit and license was conditioned upon agreement to the restriction because Barbara Gobel has a criminal record. She has forfeited bond on five separate charges from 1978 to 1990, paying a total of $776.00 in forfeited bond. The most serious of the charges were brought in 1978 and 1979 while Ms. Gobel was an exotic dancer. The criminal history report of Ms. Gobel signed by Barbara Gobel and SLED (then ABC) Agent Ann Reese is in the DOR file and made part of the record at the hearing.

Barbara Gobel is now fifty-one years old and a grandmother. She has been married to Albert J. Gobel for eleven years. Ms. Gobel testified that those factors have resulted in a positive lifestyle change for her. In her responses to the court's questions she exhibited maturity, responsibility, and respect for morality and the law.

If the restriction is lifted, Ms. Gobel intends to be the bookkeeper for the business and work closely with her husband. As wife of the owner, she has a vested interest in seeing that the business is operated in an efficient and responsible manner and is favorably perceived by the community.

The Malibu Restaurant and Lounge has not received any complaints or been cited for any violations since being licensed in 1992 and has abided by the restrictions on the license/permit.

Notice of the time, date, place, and subject matter of the hearing was given to the applicant, SLED, and DOR. SLED Agent Ann Reese, the former ABC Agent who conducted the investigation for the initial applications, was present at the hearing but offered no evidence or testimony in opposition to the removal of the restriction. No protestants were present at the hearing.

I find no evidence that the present character of Barbara Gobel is disreputable or of poor morality so as to warrant restriction from her being employed on the licensed premises. No evidence indicated that her employment or presence at the business will adversely affect the surrounding community.

S.C. Code §61-9-320 (Supp. 1993) provides the criteria to be met for the issuance of a beer and wine permit, while S.C. Code §§61-3-420 and 61-3-730 (Supp. 1993) specify the grounds for refusal to grant licenses and/or permits under Title 61.

The applicant was found to meet the requisite standards for the issuance of an on-premises beer and wine permit and minibottle license without a protest or hearing, subject to the restriction, on December 10, 1992. No evidence to the contrary being presented at this hearing, the applicant is presumed to continue to meet the requisite standards for holding the permit and license.

The original permit was issued with a restriction by agreement of the applicant pursuant to ABC Regulation 7-88, which reads:

Any stipulation and/or agreement which is voluntarily entered into by an applicant for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

Pursuant to the ABC Commission's requirement that the applicant wait twelve months to request a removal of the restriction, the applicant requested this hearing on February 21, 1994.

Effective July 1, 1993, the Alcoholic Beverage Control (ABC) Commission ceased to exist. S.C. Code § 1-30-95 (Supp. 1993) transferred the administrative duties of the former ABC Commission to DOR. S.C. Code §61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge Division is empowered to conduct and decide all hearings previously heard by the former ABC Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

Permits issued by the State for the sale of beer and wine are not rights or property. They are privileges granted in the exercise of the police power of the state to do what otherwise would be unlawful to do and 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, so is that tribunal authorized to remove restrictions or conditions

it has placed on the permit. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

No evidence was presented to indicate that Ms. Gobel's present character is questionable or that her employment on the premises would create a likelihood of unlawful or immoral activities at the restaurant. The applicant having met the burden of showing that the removal of the restriction would not adversely affect the surrounding community nor render the location or business activity unsuitable or improper, no evidence to the contrary being presented, it is concluded that the renewals should be granted and prohibition against Barbara Gobel being employed at the business be removed.

IT IS THEREFORE ORDERED that DOR issue to the applicant a renewed on-premises beer and wine permit and minibottle license without restriction as to Barbara Gobel's employment at the business or any other stipulation upon payment of the prescribed fee.

___________________________

STEPHEN P. BATES

Administrative Law Judge

May 12, 1994

Columbia, South Carolina