South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Katrina S. Hinson, d/b/a Leo's Chicken Wings vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Katrina S. Hinson, d/b/a Leo's Chicken Wings

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-17-0266-CC

APPEARANCES:
Michael L. Brown, Attorney for Applicant

Chief David Morton, (pro se) Protestant

Corbett Gibson, (pro se) Protestant

Darrell Barrentine, (pro se) Protestant
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an on-premises beer and wine permit Number 2 Flint Street, Unit E, York, South Carolina. A hearing was held on November 10, 1994. The issue considered was the suitability of the proposed business location for the sale of beer and wine. The application for a beer and wine permit is hereby granted.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) Applicant seeks an on-premises beer and wine permit for a location at Number 2 Flint Street, Unit E, York, South Carolina, having filed an application with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"),

AI #99176, on July 25, 1994.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, and DOR.

(3) All parties and protestants present at the hearing stipulated that the following issues were not in controversy: (1) moral character of Applicant; (2) business reputation of Applicant; and (3) availability of police protection at the proposed location. Without objection, the sole issue considered was the suitability of the proposed location for the sale of beer and wine for on-premises consumption.

(4) The DOR file was made a part of this record by reference by consent of the parties and protestants.

(5) Applicant plans to operate the business as a restaurant with a substantial portion of the business dedicated to the preparation and service of meals.

(6) The proposed location is in the City of York, located in a strip shopping center just off of E. Liberty Street.

(7) The immediate area surrounding the proposed location is commercial in nature, with a residential community situated behind the proposed location.

(8) There are two other licensed locations within close proximity to the proposed location.

(9) Darrell Barrentine, a resident of the neighborhood behind the proposed location, appeared at the hearing and testified in protest to the applications, citing traffic problems, the proximity of residences, the number of children and senior citizens in the immediate area, and the unsuitability of the location for the sale of alcohol as reasons for denial of the application.

(10) Applicant and her husband also own and manage a Leo's Chicken Wings franchise in Rock Hill, South Carolina, and have held a beer and wine permit and minibottle license at that location without incident or violation for more than four years.

(11) Ron Moneymaker, currently employed at the Rock Hill operation, will be the manager of the proposed location with supervision by Applicant.

(12) The clientele of the proposed location is intended to be similar to the clientele of the Rock Hill operation (families; business and professional people).

(13) No churches are within close proximity to the proposed location.



(14) Earl C. Johnson Elementary School is located on Jefferson Street, one block from the proposed location. Pedestrian and automobile traffic to and from the school occurs almost exclusively during the hours of 7:00-8:30 a.m. and 2:00-2:45 p.m., Monday through Friday.

(15) Approximately forty-five children walk along Flint Street during the above hours, walking to and from school.

(16) The intended hours of operation of the proposed location are 11:00 a.m. - 11:00 p.m., with a lunch crowd anticipated between 12:00-2:00 p.m. and a dinner crowd beginning after 5:00 p.m.

(17) The proposed location is zoned for commercial use by the City of York.

(18) None of the Protestants appearing at the hearing objected to the opening of the restaurant at the proposed location, but merely the sale of beer and wine.

(19) Applicant is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained her principal residence in South Carolina for more than one year.

(20) Applicant has not had a permit/license revoked in the last five years.

(21) Applicant is of good moral character.

(22) Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.

CONCLUSIONS OF LAW

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

(1) S.C. Code Ann. § 61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.

(3) A permit or license must not be issued if an applicant does not meet the standards of S.C. Code Ann. § 61-3-730 (Supp. 1993).

(4) As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d 705 (S.C. App. 1984).

(5) 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. 335 (1985).

(6) The proposed location is suitable and proper, in keeping with the commercial nature of the surrounding area and its relatively minimal impact upon the nearby residential community and the minimal level of business activity expected during the hours when children travel along Flint Street before and after school hours.

(7) Applicant meets the statutory requirements for issuance of a beer and wine permit.



ORDER

IT IS THEREFORE ORDERED that DOR issue to Applicant an on-premises beer and wine permit.

______________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

November 23, 1994

Columbia, South Carolina


 

 

 

 

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