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:
McClain’s Grill & Tavern, LLC vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
McClain’s Grill & Tavern, LLC
1517 72 By Pass, Greenwood, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0087-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For Respondent Department of Revenue: Lynn M. Baker, Esquire

For the Protestant: Pro Se
 

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. Footnote

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. Footnote Mr. Cape has requested a jury trial in these matters.

Footnote

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


Brown Bldg.

 

 

 

 

 

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