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:
Molly Darcy, Inc, d/b/a Molly Darcy’s On the Beach vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Molly Darcy, Inc, d/b/a Molly Darcy’s On the Beach

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0240-CC

APPEARANCES:
Kenneth E. Allen, Esquire for Petitioner

Dana R. Krajack, Esquire, for Respondent

Richard C. Talbert, 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. 2004) for an expedited contested case hearing. The Petitioner seeks an on-premises beer and wine permit and sale and consumption (mini-bottle) license for the location at 1701 South Ocean Boulevard, North Myrtle Beach, South Carolina. This matter is presently before the Court because of a protest by a concerned citizen regarding the availability of parking at the location and the late hours the restaurant remains open. The Respondent had initially denied the application due to the protest, and the Petitioner’s inability to satisfy the requirements of S.C. Code Ann. § 61-6-1610 and 23 S.C. Code Reg. 7-401.3. At the hearing, however, the Respondent indicated that the requirements of this statute and regulation had been met, and that the Respondent would have granted the application, but for the protest. After notice to the parties and Protestant, a hearing was conducted on August 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 Molly Darcy’s On the Beach, located at 1701 South Ocean Boulevard, North Myrtle Beach, South Carolina. This location is a restaurant, and has been licensed in the past under previous owners.

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, Molly Darcy, Inc. is a valid South Carolina corporation in good standing.

The State Law Enforcement Division’s criminal background investigation revealed no criminal violations for the principals of the corporation.

4.      The Applicant has a valid lease for the location and has engaged in extensive renovations

to the building.

5.      Notice of the application appeared in the North Myrtle Beach Times, 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. The Protestant timely filed a valid protest.

6.      The location is on South Ocean Boulevard, on the beach, and is in a area of mixed

commercial and residential development. There are two condominium complexes surrounding the location and a beachwear store across the street. There are seasonal residential rentals across the street, as well as the Protestant’s residence approximately 750 feet away.

7. The location is near the public beach access for the Protestant and his neighbors. The Protestant is concerned about the lack of availability of parking for the location, and the possibility that patrons of Molly Darcy’s may occupy the public parking at the public access area. In addition, he stated that there are no handicapped accessible parking spaces in front of this location.

 

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. 2004).

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.

5. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

6. 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).

7. S.C. Code Ann. § 61-4-525 (Supp. 2004) 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. In addition, S.C. Code Ann. § 61-6-1825 (Supp. 2004) has similar provisions allowing a protest to a sale and consumption (minibottle) license.

8. 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).

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. The concerns of the Protestant are valid; however, there was no evidence presented that the location was in violation of any municipal or county ordinances concerning parking. There are at least two handicapped parking spaces in the public parking lot adjacent to the location. Moreover, a principal of the Petitioner testified that the majority of his customers arrive at the location on foot, either from the beach or the nearby condominiums. The Protestant’s expressed concerns about the possible inability to find parking appear to be conjectural. He presented no specific incidences of an inability to access public parking. He did testify that he has notified the police “about ten times” of people violating the city ordinance against parking in the area from 12:00 AM to 6:00 AM, but there was no evidence presented that the violators were patrons of this location. The Protestant admitted that he had no concerns about the availability of alcohol at the location, that the Petitioner had done a “very nice job” with the renovations, that the building was an “asset to the community,” and that the people involved were nice. Any disputes regarding the enforcement of parking laws between the Protestant and the owner of the building or of the business are not within the jurisdiction of this court, and should properly be brought in the city court for North Myrtle Beach.

 

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.

 

AND IT IS SO ORDERED.

 

___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

 

August 12, 2005

Columbia, SC


Brown Bldg.

 

 

 

 

 

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