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:
Robert J. Parchini, d/b/a Washington Street Cafe vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Robert J. Parchini, d/b/a Washington Street Cafe

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0402-CC

APPEARANCES:
For the Petitioner: Marsha Johnston, Esquire

For the Protestant: Pro Se

For the Department: Arlene D. Hand, Esquire
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-1-55, et seq. (Supp. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994) for a contested case hearing. The Petitioner, Robert J. Parchini, seeks an on-premise beer and wine permit, wine and liqueur cooking license and a mini-bottle sale and consumption license for the Washington Street Cafe. A hearing was held on November 14, 1996, in the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The Permit requested by the Petitioner is approved with restrictions.



FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue and Taxation.

2. The Petitioner seeks an on-premise beer and wine permit, wine and liqueur cooking license and a mini-bottle sale and consumption license for the Washington Street Cafe located at 242 Washington Street, Walterboro, South Carolina.

3. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp. 1994) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last two years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The Petitioner is of sufficient moral character to receive a beer and wine permit.

5. The proposed location is not close to any school or playground.

6. The Petitioner operates an Italian restaurant in the heart of the city of Walterboro. William Foster has previously held an on-premise beer and wine permit for the Washington Street Cafe since 1995. The Petitioner now seeks to obtain a beer and wine permit in his name. There have been no unfavorable incidents at the location since the restaurant has been permitted to sale beer and wine. In fact, the Protestant did not even know the location served beer and wine until he observed beer or wine being sold in the cafe while he was eating at the restaurant himself.

7. The cafe seats approximately 60 people and has a Grade " A" food rating. It is closed on Sundays. The Department and the Protestant contend that both the permit and licenses should be denied because of the proximity of the proposed location to the Walterboro Christian Center. The evidence established that the Christian Center is located 119 feet from the proposed location following the route of a pedestrian leaving the proposed location and walking directly across the street and down toward Lucas street.

8. The Christian Center moved into the Walterboro City business district which already had a retail liquor store in close proximity to the church.

9. The proposed location is suitable for an on-premise beer and wine permit. However, the wine and liqueur cooking license and the mini-bottle sale and consumption are legally prohibited because of the proximity of the proposed location to the Walterboro Christian Center.

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1995) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-1-55 (Supp. 1995) grants to the Administrative Law Judge Division the powers, duties and responsibilities as hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. §§ 6-9-320 and 61-5-50 (Supp. 1995) sets forth the requirements for the issuance of an on-premise beer and wine permit and a sale and consumption license.

4. In addition to the requirements set forth above, a license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-5-50 (Supp. 1995) are met. That section requires that a mini-bottle license be granted only to a bonafide business engaged either in the business of primarily and substantially preparing and serving meals or furnishing lodging. The principals and applicant must not only be of good moral character, but furthermore, the business must also have a reputation for peace and good order.

5. S.C. Code Ann. § 61-5-50 (Supp. 1995) provides that a sale and consumption license shall not be granted unless the proposed location meets the minimum distance requirements from churches, schools, or playgrounds as set forth in S.C. Code Ann. § 61-3-440 (Supp. 1995). Section 61-3-440 requires that a location within a municipality licensed to sell liquor must be a minimum of three hundred feet (300') from any church, school, or playground.

6. 23 S.C. Code Regs. 7-11 (1976) provides:

With respect to a church or a school, the distance shall be measured from the entrance to the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds of the church or school, or any building in which religious services or school classes are held, whichever is the closer. The Alcoholic Beverage Control Commission has determined that the grounds in use as part of the church or school is restricted to the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or buildings and does not extend to the grounds surrounding the church which may be used for beautification, cemeteries, or any purpose other than such part of the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings.
Only one entrance to the grounds of a church or school shall be considered, to wit: the entrance to the grounds nearest an entrance to the church or school building.
Where no fence is involved, the nearest entrance to the grounds shall be in a straight line from the public thoroughfare to the nearest door.

7. S.C. Code Ann. § 61-3-610 (Supp. 1995) provides that an establishment which offers meals to the public may secure a license from the Department to purchase and possess liqueurs, wines, and similar alcoholic beverages used solely in the cooking and preparation of foods served by the establishment. That Section sets forth that the license "must" be under the "conditions prescribed by the department." 23 S.C. Code Regs. 7-21 (C)(1976) provides that a food preparation license will not be granted by the Department unless the Applicant possesses a sale and consumption license.

8. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 595, 281 S.E.2d 118, 119 (1981).

9. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a beer and wine permit and a mini-bottle sale and consumption license using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705, (Ct. App. 1984).

10. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335, (1985).

11. 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 protestant objects to the issuance of a permit or license is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

12. S.C. Code Ann. § 61-9-340 (Supp. 1995) provides that upon determination that the Petitioner meets the criteria for the issuance of a permit or license, and has not misstated or concealed a fact in the application, the South Carolina Department of Revenue and Taxation must issue the permit or license after payment of the prescribed fee.

13. I conclude that the Petitioner meets all the statutory requirements for holding a beer and wine permit. However, the wine and liqueur cooking license and mini-bottle sale and consumption license are legally prohibited because of the proximity of the proposed location to the church.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application of Robert J. Parchini for a wine and liqueur cooking license and mini-bottle sale and consumption license is denied.

IT IS FURTHER ORDERED that the on-premise beer and wine permit application of Robert J. Parchini for the Washington Street Cafe be granted upon the payment of the required fee and cost by the Petitioner.

AND IT IS SO ORDERED.



______________________________________

Judge Ralph King Anderson, III

Administrative Law Judge

January 13, 1997

Columbia, South Carolina


 

 

 

 

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