ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C.
Code Ann. §§ 1-23-310 et seq. (Supp. 2004), § 61-2-260 (Supp. 2004), § 61-4-520 (Supp. 2004),
§ 61-4-1820 (Supp. 2004) and § 61-4-525 (Supp. 2004) for a contested case hearing. McClain’s
Grill & Tavern, LLC (Petitioner), seeks an on-premises beer and wine permit and a sale and
consumption (minibottle) license for its location at 1517 72 ByPass, Greenwood, South Carolina
(location). Laurel Baptist Church (Protestant) filed a protest to the application with the South
Carolina Department of Revenue (Department). Because of the protest, the hearing was
required.
A hearing in this matter was held before me on April 4, 2005 at the offices of the
Administrative Law Court in Columbia, South Carolina. Both parties and the Protestant appeared
at the hearing. Evidence was then introduced and testimony was given. After carefully weighing
all the evidence, I find that Petitioner’s request for an on-premises beer and wine permit and
minibottle license should be granted.
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, I
make the following Findings of Fact by a preponderance of evidence:
1.The ALC has personal and subject matter jurisdiction.
2.Notice of the time, date, place and subject matter of the hearing was timely given
to all the parties and the Protestant.
3.Petitioner seeks an on-premises beer and wine permit and minibottle license for
its location at 1517 72 ByPass, Greenwood, South Carolina, which is located within the city
limits.
4.Charles Wilson Taylor, Jr., testified at the hearing that he is the sole owner of
McClain’s Grill & Tavern, LLC, a limited liability company currently in good standing with the
South Carolina Secretary of State.
5.Mr. Taylor is over the age of twenty-one. He is a legal resident of the State of
South Carolina and he has maintained his principal place of abode in the State of South Carolina
for at least thirty (30) days prior to making this application. Mr. Taylor is of good moral
character, and neither Mr. Taylor nor McClain’s Grill & Tavern has had a permit or license
revoked in the last two (2) years.
6.Notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
7.The proposed location will be a full service restaurant primarily and
substantially engaged in the preparation and serving of meals. The location will
operate from 11:00 a.m. to 11:00 p.m., Monday through Thursday, and 11:00 a.m. to
12:00 a.m. on Friday and Saturday. It will serve cuisine that includes steaks, seafood,
pasta, chicken dishes, and sandwiches. Starting at 10:00 p.m. only appetizers will be
served, and the kitchen will shut down by 11:00 p.m.
8.Mr. Taylor testified that no live bands would perform at the location but
that music will be played through speakers inside the location.
9.This location was licensed for the sale of alcoholic beverages when the
location was under previous ownership.
10.The location is in a primarily commercial area and there are no churches,
schools, or residences within three hundred (300) feet of the location. The nearest
church is seven-tenths (7/10) of a mile from the location.
11.Mr. Taylor is also the owner of Cultured Cowboy, a store located in close
proximity to the restaurant. He testified that he intends to split his time between the
two locations on a daily basis.
12.Anthony “Tony” Cape will manage the location and will be present at the
location every day. Mr. Cape is over the age of twenty-one (21) and has experience
in restaurant management. Mr. Cape has no ownership interest in McClains Grill &
Tavern.
13.The lease for the premises was executed by Barry Brown on behalf of
McClain’s Grill & Tavern, LLC. However, Mr. Taylor testified at the hearing that
Mr. Brown has no ownership interest in the business and is not an employee of the
business. Betty Senn Taylor, Mr. Taylor’s mother, is the owner of the property.
14.Protestant Reverend Todd Johnson of Laurel Baptist Church testified at
the hearing. He expressed concerns for safety due to the past history of the location
when it was under different ownership and further testified that there are several
residences near the location. Reverend Johnson’s church is located approximately
seven-tenths (7/10) of a mile from the location and cannot be seen from the location.
15.Mr. Taylor was not involved with the business that previously operated at
this location.
16.The proposed location is suitable for an on-premises beer and wine permit
and minibottle license with the restrictions set forth below.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2004) grants jurisdiction to the Administrative
Law Court to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3.S.C. Code Ann. § 61-4-520 (Supp. 2004) sets forth the requirements for the
issuance of a beer and wine permit.
4.S.C. Code Ann. § 61-6-1820 (Supp. 2003) sets forth the requirements for the
issuance of a sale and consumption (minibottle) license. Section 61-6-1820(1) provides that the
applicant may receive a license upon the finding that "[t]he applicant is a bona fide nonprofit
organization or the applicant conducts a business bona fide engaged primarily and substantially
in the preparation and serving of meals or furnishing of lodging."
5.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision.
Palmer v. S.C. 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 of an applicant for alcohol
permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6.The weight and credibility assigned to evidence presented at the hearing of a
matter is within the province of the trier of fact. 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).
7.Although "proper location" is not statutorily defined, the Administrative Law
Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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 operation 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). In determining the suitability of a location, it is proper for
this Court to consider any evidence that demonstrates any adverse effect the proposed location
will have on the community. Palmer, supra. It is also relevant to consider the previous history of
the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261
S.C. 168, 198 S.E.2d 801 (1973). Furthermore, in considering the suitability of a location, it is
relevant to consider whether the testimony in opposition to the granting of a license is based on
opinions, generalities and conclusions, or whether the case is supported by facts. Id.
8.Unless there is 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 by itself to deny the application. See
45 Am.Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors §119
(1981).
9.Permits and licenses issued by this state for the sale of liquor, beer and wine are
not property rights. Rather, they are privileges granted in the exercise of the State’s police
power to be used and enjoyed only so long as the holder complies with the restrictions and
conditions governing them. The Administrative Law Court, as the tribunal authorized to grant
the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See
Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
10.Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (Supp. 2004) authorizing the
imposition of restrictions on permits, provides:
Any written stipulation and/or agreement which is voluntarily entered into by an
applicant for a permit or license between the applicant and the Department, if
accepted by the Department, will be incorporated into the basic requirements for
the enjoyment and privilege of obtaining and retaining the permit or license and
shall have the same effect as any and all laws and any and all other regulations
pertaining to the permit or license.
Knowing violation of the terms of the stipulation or agreement shall constitute
sufficient grounds to revoke said license.
11. With the restrictions set forth below, Petitioner meets the statutory requirements
for holding an on-premises beer and wine permit and minibottle license at the location. The
location is located in a primarily commercial area and there are no churches, residence, or
playgrounds within three hundred (300) feet of the location. Furthermore, any objections
expressed by the Protestant are based on problems that occurred at the location when it was
previously operated by another person or entity. Accordingly, I find that the location would not
have an adverse impact on the surrounding community and is suitable for an on-premises beer
and wine permit and minibottle license with the restrictions set forth below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for an on-premises beer and wine permit and minibottle
license by McClain’s Grill & Tavern, LLC, 1517 72 ByPass, Greenwood, South Carolina, is
GRANTED upon Charles Wilson Taylor, Jr., signing a written agreement with the South
Carolina Department of Revenue agreeing to the restrictions that are set forth below:
RESTRICTIONS
1.Petitioner shall provide the Department with a lease for the premises at
1517 72 ByPass, Greenwood, South Carolina, which is executed by
Charles Wilson Taylor, Jr. on behalf of McClain’s Grill & Tavern, LLC.
2.A SLED background check, which meets the approval of the Department,
must be performed for Anthony “Tony” Cape prior to his working for
Petitioner.
3.Petitioner must receive a final inspection from SLED which confirms that it complies
with the restaurant provisions of Title 61 and the regulations thereunder;
4.Petitioner and its employees shall prohibit loitering and the consumption of alcoholic
beverages in the parking lot area of the location.
5.Live bands and disc jockeys are not permitted at the location, and no music played on the
outside of the location is permitted.
6.Petitioner must maintain proper lighting around the exterior of the location and ensure
that litter is collected on a daily basis.
IT IS FURTHER ORDERED that a violation of any of the above restrictions shall be
considered a violation against the permit and license and may result in a fine, suspension, or
revocation of the permit and license.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
April 19, 2005
Columbia, South Carolina |
