ORDERS:
AMENDED FINAL ORDER AND DECISION
A hearing in this matter was held on April 4, 2005, and the Court issued its Final Order
and Decision (Order) on April 19, 2005. Subsequently, the parties asked the Court to reopen the
matter and take additional testimony concerning the restrictions placed in the Order, specifically
the restriction regarding the SLED background check to be performed on Mr. Anthony “Tony”
Clark Cape. Pursuant to that request, a hearing was held by the Court on April 28, 2005 after
notice to the parties. Testifying at this hearing were Anthony “Tony” Clark Cape, Denise Cape,
and Charles Wilson Taylor, Jr., owner of McClain’s Grill & Tavern. Based upon the testimony
given at this hearing, the Court hereby vacates the Final Order and Decision issued on April 19,
2005 and substitutes the following Amended Final Order and Decision therefore.
STATEMENT OF THE CASE
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. After carefully weighing all the evidence presented at hearings before the Court, I find
that Petitioner’s request for an on-premises beer and wine permit and minibottle license should
be granted 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, 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 hearings 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 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.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 will not be an employee at
the location. Betty Senn Taylor, Mr. Taylor’s mother, is the owner of the property.
12.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.
13.Anthony “Tony” Clark Cape will be an employee of the location and will
be present at the location every day. Mr. Cape’s primary duty will be that of chef and
his work will focus on food preparation. He may assist the owner from time to time
with some of the managerial duties. However, the primary managerial duties will
remain with the owner, Mr. Taylor. Also, the responsibility for training all
employees in their duties and responsibilities, as well as training concerning the laws
and regulations applicable to alcohol sales in this State, will be solely with Mr.
Taylor. Mr. Cape is over the age of twenty-one (21) and has experience in restaurant
management. He has no ownership interest in McClain’s Grill & Tavern.
14.As a result of a SLED background check, questions arose concerning the
moral character of Mr. Cape. On August 2, 1995, Mr. Cape was convicted of
criminal domestic violence, for which he forfeited the bond of $304 rather than
appear in court. Mr. Cape also has the following three pending charges: criminal
domestic violence, driving under the influence 1st offense, and open container of
beer/wine. Testimony was given by Mr. Cape and his estranged wife, Denise Cape,
as to the circumstances of the conviction and pending charges.
15. The August 2, 1995 conviction arose out of an incident that occurred
while Mr. and Mrs. Cape were on a family vacation in North Myrtle Beach, South
Carolina. Early on the morning of May 26, 1995, Mr. and Mrs. Cape had a verbal
altercation and both engaged in some pushing and shoving. Mr. Cape testified that
his wife requested that no charges be brought against him but that he was charged
with criminal domestic violence notwithstanding her request. At the time, the parties
lived in Raleigh, North Carolina, and Mr. Cape felt it more convenient to forfeit the
$304 bond rather than go back to North Myrtle Beach and contest the charge.
16.Mr. Cape’s pending charge of criminal domestic violence arose out of an
incident that occurred on June 28, 2004. Mr. Cape testified that he was at his
brother’s lake house visiting when Mrs. Cape arrived, uninvited, and attempted to
video tape him. Mrs. Cape testified that he tried to grab the camera but that he did
not physically strike her. She subsequently reported the incident to police. Mr. and
Mrs. Cape were in the process of getting a divorce when this incident occurred. Mr.
Cape has requested a jury trial in this matter.
17.In the early morning hours of September 5, 2004, Mr. Cape received a
telephone call from a friend who was too inebriated to drive home. The friend asked
Mr. Cape to pick him up and drive him home. Mr. Cape drove to the location of his
friend and went through a road block while driving him home. Law enforcement
officers checked Mr. Cape’s car and found what they determined to be an open
container. Mr. Cape testified that a styrofoam cup, which the authorities treated as an
open container, was empty and had been in his car for four days. Subsequently, Mr.
Cape was arrested for open container and for driving under the influence, 1st offense
when he refused to take a breathalyzer test.
Mr. Cape has requested a jury trial in
these matters.
18.Protestant Reverend Todd Johnson of Laurel Baptist Church also 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.
19.Mr. Taylor was not involved with the business that previously operated at
this location.
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.In South Carolina, there is no single criterion by which to determine whether or
not one is possessed of good moral character so as to satisfy the alcoholic beverage licensing
laws. See 1969 Op. S.C. Atty. Gen. No. 2709.
10.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).
11.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.
12. 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 in a primarily commercial area where there are no churches, residences, or
playgrounds within three hundred (300) feet of the location. Furthermore, the objections
expressed by the Protestant concerning safety issues 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.
Although Mr. Cape has one criminal conviction on his record and several pending
charges, based upon the testimony of both Mr. Cape and his wife, the Court finds that Mr. Cape
is of sufficient moral character to work as an employee of the location. Accordingly, the Court
finds that Mr. Cape is qualified to serve as an employee at the business and as the manager of the
cooking area, serving as the chef and the planner of all the food to be served. However, his job
duties will not involve training of employees in the laws and regulations regarding the sale of
alcoholic beverages in this State.
With the restrictions which are placed on this permit and license, which must be adhered
to by the Petitioner to retain the permit and license, the Court feels it has addressed the concerns
of the Protestant by placing restrictions on the permit and license which will ensure that the
location will function in a manner that will not be adverse to the community.
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.Petitioner must receive a final inspection from SLED which confirms in writing that the
location complies with the restaurant provisions of Title 61 and the regulations thereunder;
3.Petitioner and its employees shall patrol frequently the parking lot area at the location to
prevent and prohibit loitering and the consumption of alcoholic beverages.
4.Live bands and disc jockeys are not permitted at the location, and no music played on the
outside of the location is permitted.
5.Petitioner must maintain proper lighting around the exterior of the location and ensure
that litter is collected and picked up on a daily basis.
6.If at any time in the future Barry Brown desires to purchase an interest in the business or
the owner desires to hire Mr. Brown as an employee, the owner must notify the Department and
a SLED background check must be conducted. The Department must give its approval before
Mr. Brown may either purchase an interest in the business or be hired as an employee.
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 upon request by the Department.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
May 2, 2005
Columbia, South Carolina |
