ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 &
Supp. 1997), 61-2-260 (Supp. 1997) upon the filing of applications (AI #119027 by Petitioner for
sale and consumption minibottle license for a location at 618 N. Limestone Street, Gaffney,
South Carolina. Upon receipt of a written protest to the application, the South Carolina
Department of Revenue ("DOR") transmitted the case to the Administrative Law Judge Division
("ALJD") for a hearing. The contested case hearing was conducted on April 20, 1998, at the
Spartanburg County Courthouse in Spartanburg, South Carolina. Petitioner testified in support
of the application, and Protestant testified in opposition. Upon review of the relevant and
probative evidence and applicable law, I find that the proposed location is suitable and that
Petitioner is a fit and proper person to be licensed. The application for the sale and consumption
minibottle license is therefore granted.
FINDINGS OF FACT
By the preponderance of the evidence, I make the following Findings of Fact:
Petitioner seeks a sale and consumption minibottle license for a location at 618 N.
Limestone Street, Gaffney, South Carolina, having filed application with DOR (AI #119027).
Protestant Chief John O'Donald of the Gaffney Police Department, filed a written
protest to the issuance of a minibottle license to Petitioner at the proposed location, and this case
was transmitted to the ALJD for a contested case hearing.
Upon motion granted, DOR was excused from appearance at and participation in the
contested case hearing on the ground that it would have granted the permit but for the written
protest.
All parties and protestants were given notice of the time, place, and date of the hearing.
Petitioner is the owner/operator of the proposed location, which is a restaurant and bar
in a heavily commercial area of downtown Gaffney.
The proposed location is currently licensed to sell beer and wine for on-premises
consumption, having been issued the beer and wine permit in June, 1997.
Since June, 1997, Petitioner has installed a kitchen at the proposed location.
The proposed location serves a full breakfast in the morning and grill items throughout
the day and evening.
The proposed location holds a Certificate of Grade "A" Health Rating from DHEC for
food service.
The proposed location is open Monday through Saturday, 7:00 a.m. - 10:00 or 11:00
p.m.
Petitioner also holds, and has held for the past thirteen years, a beer and wine permit and
minibottle license at another location in Gaffney, known as "Mom's Restaurant."
Mom's Restaurant is located approximately three blocks from the proposed location.
The Gaffney Police have responded to a call at the proposed location since June, 1997,
involving a fight between patrons.
Harold's Restaurant, located approximately 211 feet from the proposed location, is
licensed to sell liquor, beer and wine for on-premises consumption, and has been licensed for
approximately twenty years.
No churches, playgrounds, or schools are within 300 feet of the proposed location.
No residences are within close proximity of the proposed location.
Petitioner has never been arrested or convicted for any criminal wrongdoing.
Petitioner has never had a beer and wine permit or liquor license revoked.
Petitioner is of good moral character.
Petitioner is over twenty-one years of age, is a legal resident of the United States and the
State of South Carolina, and has maintained his principal place of abode in South Carolina for
more than thirty days.
Notice of application appeared in The Cherokee Chronicle on December 16, 23, and 31,
1997.
The proposed location is suitable to sell liquor for on-premises consumption.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
The South Carolina Administrative Law Judge Division has jurisdiction over this subject
matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and §§ 1-23-310 et seq. (1986 &
Supp. 1997).
S.C. Code Ann. §§ 61-6-1820 and 61-6-1610 (Supp. 1997) provide the criteria to be met
by an applicant for a minibottle license in South Carolina.
Petitioner conducts a business at the proposed location which is bona fide engaged
primarily and substantially in the preparation and service of meals. S.C. Code Ann. §§ 61-6-1610 and 61-6-1820(1) (Supp. 1997).
Petitioner is of good moral character. S.C. Code Ann. §61-6-1820 (Supp. 1997);
Toussaint v. State Board of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488 (1991).
Although there is no single criterion by which to determine if a person is of good moral
character, commission of a crime involving moral turpitude implies the absence of good moral
character. 1969 Op. S.C. Att'y Gen. No. 2709 at 159; 1989 S.C. Op. Att'y Gen. No. 89-89 at
237.
"Moral turpitude" is that which one does against justice and honesty, good morals, or
willful dishonesty for one's own gain. State v. Morris, 289 S.C. 294, 345 S.E.2d 477 (1986).
No schools, churches, or playgrounds are within the prescribed proximity to render the
proposed location unsuitable under S.C. Code Ann. §§ 61-6-120 and 61-6-1820(3) (Supp.
1997).
Petitioner gave the required public notice of his minibottle application. S.C. Code Ann.
§ 61-6-1820(4) and (5) (Supp. 1997).
Petitioner meets all age and residency qualifications to hold a minibottle liquor license.
S.C. Code Ann. § 61-6-1820 (6) and (7) (Supp. 1997).
Petitioner has not been convicted of a felony within the past ten years. S.C. Code Ann.
§ 61-6-1820(8) (Supp. 1997).
Petitioner meets all the statutory qualifications to hold a minibottle liquor license. S.C.
Code Ann. §61-6-1820 (Supp. 1997).
"[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed." Palmer v.
South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
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. Byers v. South Carolina ABC Comm'n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984).
When the relevant testimony of those opposing the permit consists of opinions,
generalities, and conclusions unsupported by fact, the denial of a permit on the ground of
unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181
(1981). Such unsupported allegations form an insufficient basis for denial. Taylor v. Lewis, 261
S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
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 (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App.
1984).
In light of Petitioner's past and current experience as a holder of beer and wine permits
and minibottle licenses at the proposed location and/or other locations, Petitioner is a fit and
proper person to hold a minibottle license.
Given the commercial nature of the surrounding area, the absence of churches, schools,
and playgrounds in the vicinity, the existence of other licensed locations in close proximity, and
the fact that the proposed location already holds a beer and wine permit, the proposed location is
a suitable one for the sale and consumption of liquor.
Any issues raised or presented in the proceedings or hearing of this case not specifically
addressed in this Order are deemed denied. ALJD Rule 29(B).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the sale and consumption minibottle license sought by
Petitioner is granted.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May 22, 1998
Columbia, South Carolina |