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:
Chrispas A. Smith, d/b/a Shorty's Sports Bar vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Chrispas A. Smith, d/b/a Shorty's Sports Bar
3789 Hwy 521 North, Dalzell, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0383-CC

APPEARANCES:
James H. Harrison, Esquire for Petitioner

Lynn Baker, Esquire, for Respondent

Major Gardner, Sumter Co. Sheriff’s Dept., Protestant
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-4-520 (Supp.2003) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit and sale and consumption (mini-bottle) license for the location at 3789 Hwy. 521 North, Sumter, South Carolina. This matter is presently before the Court because of a protest by the Sumter County Sheriff’s Office. The Respondent moved to be excused, since but for the protest they would have issued the permit and license. This motion was denied. After notice to the parties and Protestant, a hearing was conducted on February 11, 2005, at the Court in Columbia, South Carolina. At the hearing, the parties, their counsel and Protestant were present as indicated.

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

1. The Petitioner seeks an on-premises beer and wine permit and mini-bottle license

for the location known as Shorty’s Sports Bar, located at 3789 Hwy. 521 North, Sumter, South Carolina. This location is a sports bar located approximately one mile from Shaw Air Force Base.

2. The Respondent, South Carolina Department of Revenue, determined that the

location and the Petitioner met all statutory requirements and would have granted the permit but for the protest.

3. The applicant is of good moral character. The State Law Enforcement Division’s

criminal background investigation revealed no criminal violations. The parties stipulated that the applicant met the personal qualifications to hold a license and permit.

6. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the

State of South Carolina, and has maintained her principal residence in the State for at least thirty days prior to the application.

7.Notice of the application appeared in the Sumter Item, a newspaper of general

circulation in the area of the proposed location, once a week for three consecutive weeks and notice was posted at the proposed location for fifteen days.

8.The proposed location has seating for 150—200 people, approximately 30 paved parking spaces, and an additional one and one-third acres of grassland for parking. The restaurant would be open Tuesday through Saturday 5 PM to midnight. There will be no live music. The menu will consist of cheeseburgers, chicken wings, chips and appetizers.

9.The protestant indicated that some of the neighbors interviewed by the Sheriff’s Department were concerned about the presence of drunk drivers in the area leaving the proposed location. The court noted that none of the neighbors interviewed by the sheriff’s department filed a valid protest with the Department of Revenue.

10.The location is not yet completed and will need to be inspected by the Department of Health and Environmental Control for a food service license as well as a final building inspection prior to issuance of any license.

CONCLUSIONS OF LAW

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

1.The South Carolina Administrative Law Court has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003).

2.The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3.Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).

4.It is also the fact finder’s responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and weight of any testimony offered. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s demeanor and veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

5.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 a Protestant objects to the issuance of a permit is not a sufficient reason alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).

6.S.C. Code Ann. § 61-4-525 (Supp. 2003) provides that a person residing in the county in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if he files a written protest.

7.Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).

8.A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2003) are met. That section requires that a mini-bottle license be granted only to a bona fide business engaged in either the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not only must the principals and applicant be of good moral character but the business must also have a reputation for peace and good order.

S.C. Code Ann. § 61-6-20(2) (Supp. 2003) sets forth:

‘Bona fide engaged primarily and substantially in the preparation and serving of meals’ means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

In order to meet the requirements of Section 61-6-20(2), the location must also meet the requirements of 23 S.C. Code Ann. Regs. 7-401.3 (Supp. 2003). Additionally, Section 61-6-1820 also 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. § 61-6-120 (Supp. 2003).

9.After considering all the relevant factors, I find that the restaurant’s location is suitable for the on-premises sale of beer and wine and sale and consumption (minibottle) license, upon satisfactory completion of construction and final inspections, including DHEC. Although this court appreciates the diligence of the Sumter County Sheriff’s department in interviewing the neighbors of the proposed location, the fact remains that none of these neighbors protested the application. In addition, their concerns, which are hearsay, are all speculative.

ORDER

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

ORDERED that the South Carolina Department of Revenue grant the Petitioner’s application for an on-premises beer and wine permit and sale and consumption (minibottle) license upon satisfactory completion of the location and all necessary inspections.

AND IT IS SO ORDERED.



___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

April 3, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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