ORDERS:
ORDER OF DISMISSAL
In the above-captioned matter, Petitioner Bomb Island Grill, LLC, has applied for an on-premises beer and wine permit and a restaurant minibottle license for the premises located at 912 Chapin Road in Chapin, South Carolina. By a Final Agency Determination dated October 13, 2005, Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application because of a protest filed against the application by Mini-Jer-Z’s based upon a contractual dispute between it and the owner of the real property containing Petitioner’s proposed premises. On November 10, 2005, Petitioner filed a motion requesting that this Court dismiss the protest filed by Mini-Jer-Z’s and order the Department to continue processing Petitioner’s application. For the reasons set forth below, Petitioner’s motion is granted and this matter is dismissed.
BACKGROUND
As noted above, Petitioner Bomb Island Grill, LLC, seeks an on-premises beer and wine permit and a restaurant minibottle license for the premises located at 912 Chapin Road in Chapin, South Carolina, which Petitioner leases from Kenneth Loveless. The protestant of record, Mini-Jer-Z’s, is a South Carolina corporation that is currently involved in a contractual dispute with Mr. Loveless. Specifically, Mini-Jer-Z’s has filed a breach of contract action against Mr. Loveless seeking specific performance on a contract for the lease with the option to purchase the real property containing Petitioner’s proposed premises. And, the sole basis for the protest filed by Mini-Jer-Z’s against Petitioner’s application is its contention that Petitioner’s permit and license application should be denied “until such time that the [circuit] court makes a determination on the legality of the current lease between Loveless and Mini-Jer-Z’s.” (Protestant’s Prehearing Statement ¶ 5.)
DISCUSSION
Because the grounds for Mini-Jer-Z’s protest are not related to Petitioner’s eligibility for the permit and license it seeks or otherwise germane to the question of whether Petitioner’s permit and license application should be granted, the protest must be dismissed and the Department must continue to process Petitioner’s application.
A person residing in the same county as, or within five miles of, a location for which a beer and wine permit and minibottle license is sought may protest the issuance of the permit and license if he files a written protest containing certain information, including the “specific reasons why the application should be denied.” See S.C. Code Ann. §§ 61-4-525 (Supp. 2004) (protests of beer and wine permits), 61-6-1825 (Supp. 2004) (protests of minibottle licenses); 23 S.C. Code Ann. Regs. 7-201 (Supp. 2004) (protests of alcoholic beverage permits and licenses generally). While the statutes and regulations providing for such protests do not explicitly restrict the grounds for which a person may protest an application, it is clear that a protest against the issuance of a permit or license must be relevant to the question of whether the permit or license should be granted under the applicable statutory and regulatory guidelines. In order to be considered, the protest must at least state an objection that would provide the licensing authority with a legitimate reason to deny the application in question under the relevant laws. See, e.g., S.C. Code Ann. § 61-4-525 (requiring a protest of a beer and wine permit application to state the “specific reason” that the application should be denied). Accordingly, a protest may be heard if it specifically alleges that the applicant, its proposed business, or the proposed location of its establishment does not meet a particular statutory requirement for licensure, or if it more generally asserts that the applicant is not a suitable person to hold the license in question or that the proposed location of the applicant’s establishment is not a suitable place to be so licensed.
However, a protest need not be considered where it is based solely upon matters that are not cognizable in determining whether a license application should be granted, such as where a protest is lodged solely because of an underlying property dispute regarding the premises to be licensed. In such instances, courts have held that the resolution of property disputes is not relevant to the alcoholic beverage licensing determination and should instead be left to a more appropriate legal forum. See, e.g., Lones v. Blount County Beer Bd., 538 S.W.2d 386, 390 (Tenn. 1976) (holding that “[t]itle deficiencies are not a legitimate concern of local beer boards” and stating that “[i]f an applicant is willing to lease premises knowing that there is a restrictive covenant precluding the sale of alcoholic beverages, then this is a matter that addresses itself solely to his judgment and discretion and as to which the Beer Board has no concern”); Enos v. Hanff, 152 N.W. 397, 401 (Neb. 1915) (holding that, where “[t]here is no direct provision in the statute requiring the licensing board to investigate such questions [regarding title to property], or to refuse a license because of doubts in regard to the good faith of the title of the apparent owner of the property where the applicant expects to operate his saloon,” the most reasonable construction of the licensing statute was that “the intention was to leave such inquiries to the ordinary process of the law”). Such is the case here. The protest filed by Mini-Jer-Z’s is based solely upon its contractual dispute with the owner of the property containing Petitioner’s proposed location and does not contain any grounds related to Petitioner’s eligibility for the permit and license it seeks or grounds otherwise germane to the question of whether Petitioner’s permit and license application should be granted under the applicable law. (Protestant’s Prehearing Statement ¶ 5.) In short, the protest does not provide the Department or this Court with any legitimate basis upon which to deny Petitioner’s permit and license application. Therefore, the protest filed by Mini-Jer-Z’s need not be considered in this matter.
ORDER
For the reasons set forth above,
IT IS HEREBY ORDERED that Petitioner’s motion to dismiss is GRANTED and the above-captioned matter is DISMISSED.
IT IS FURTHER ORDERED that, as a result of this dismissal, the Department SHALL CONTINUE TO PROCESS Petitioner’s application for an on-premises beer and wine permit and a restaurant minibottle license for the premises located at 912 Chapin Road in Chapin, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
1205 Pendleton Street, Suite 224
Columbia, South Carolina 29201-3731
November 22, 2005
Columbia, South Carolina |
