SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 2000) for a contested case hearing. The Petitioner, Russell's Restaurant and Bar, Inc., d/b/a Sidekicks (Sidekicks), seeks an on-premise beer and wine permit and a restaurant sale and consumption license. The South Carolina Department of Revenue (Department) denied the issuance of this license and permit. A hearing was held on May 31, 2001, at the offices of the Division in Columbia, South Carolina.

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 Petitioner, the Respondent, and the Protestants, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and the Department.

2. The Petitioner seeks an on-premise beer and wine permit and a restaurant sale and consumption license as a corporation doing business at 1268 Surfside Industrial Park, Surfside Beach, South Carolina.

3. The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2000) concerning the residency and age of the owner of the Petitioner location, James Russell Bryant, are properly established. Furthermore, Mr. Bryant has not had a permit or license revoked within the last two years, and notice of the application was lawfully posted both at the location and in a newspaper of general circulation. The proposed location is also not unreasonably close to any school or playground

4. Mr. Bryant has no criminal record and is of sufficient moral character to receive a beer and wine permit and sale and consumption license. Furthermore, no evidence was presented that challenged the reputation of the Petitioner's business for peace and good order in the community or its principal's moral character. Mr. Bryant previously held a beer and wine permit and a restaurant sale and consumption license from September 1998 until September 2000.

5. The Department and the Protestants contend that the Petitioner's location is not suitable because:

a. The location does not meet the restaurant requirements of the state's alcoholic beverage laws and regulations; and

b. The location is too close to a church.

6. Sidekicks is situated on Industrial Park Road in a commercial area of Surfside Beach. It is located in a strip mall and is surrounded by other businesses. The Petitioner has been operating the business under a temporary license issued by the Respondent since November 2000. He obtained that permit because the previous business at the location, "Babylon's," sold beer, wine and alcohol before the Petitioner moved in.

Immediately adjacent to the proposed location is Unity Christ Church. In fact, the proposed location shares a common wall with the church. Nevertheless, "Babylon's" sold beer, wine and alcohol before the Petitioner moved in. In fact, the location was licensed when the church initially moved in next door. Furthermore, the Petitioner has cooperated with the church when complaints, such as loud music, have been made.

7. Sidekicks holds a Grade "A" health permit. Nevertheless, when the SLED agent checked the proposed location on October 31, 2000, the seating arrangements did not meet the legal requirements for the issuance of a sale and consumption license. Additionally, the Petitioner's handwritten menu listed only pre-made sandwiches, mini pizzas, hot dogs and chips.

However, Sidekicks now seats 40 people at tables and 17 people at the bar. Furthermore, the proposed location opens at 2:00 p.m. Monday through Saturday and serves food anytime it is open. Specifically, the location serves specials prepared on the premises each day in addition to the regular menu items. Those specials consist of hot meals that are prepared by the manager and posted on a board at the location. The establishment also has a kitchen which consists of a microwave oven, a three-compartment sink, a sandwich preparation area and two small refrigerators.

8. There is no evidence of any law enforcement problems or any violations of the Petitioner's temporary license and permit. I find that the proposed location is suitable for an on-premise beer and wine permit. Furthermore, the proposed location currently meets the criteria for a restaurant sale and consumption license. However, the kitchen and the offering of food from the kitchen are only marginally adequate to meet the requirements of the statutes and the regulations. If the Petitioner does not continue to offer the hot meals at the location on a daily basis, Sidekicks would cease to be suitable.

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. 2000) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2000) sets forth the requirements for the issuance of an on-premise beer and wine permit.

4. A license for the sale and consumption of alcoholic beverages must not be granted unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2000) are met. That section requires that a mini-bottle license be granted only to a bonafide business engaged in either the business of primarily and substantially preparing and serving meals or furnishing lodging. Furthermore, not only must the principals and applicant be of good moral character but the business must also have a reputation for peace and good order.

5. S.C. Code Ann. § 61-6-20(2) (Supp. 2000) sets forth:

'Bona fide engaged primarily and substantially in the preparation and serving of meals' means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

(emphasis added). Furthermore, 23 S.C. Code Ann. Regs. 7-19(A) (1976) states that in order to meet the requirements of S.C. Code Ann. § 61-6-20(2) (Supp. 2000) the location must:

1. Be equipped with a kitchen that is utilized for the cooking, preparation, and serving of meals;

2. Have readily available to its guests and patrons either "menus" with the listings of the various meals offered for service or a listing of available meals and foods, posted in a conspicuous place readily discernible by the guest or patrons;

3. Prepare for service to customers hot meals at least once each day the business establishment chooses to be open; and

4. If such establishment advertises, a substantial portion of its advertising must be devoted to its food services.

The definition of "meal" is limited by the regulation as not including "[s]andwiches, boiled eggs, sausages and other snacks prepared off the licensed premises but sold thereon . . . ." 23 S.C. Code Ann. Regs. 7-19 (B)(1)(Supp. 2000). Additionally, "primarily" is defined by the regulation as:

[T]he serving of meals by a business establishment constitutes a regular and substantial source of business to the licensed establishment and that meals shall be served upon the demand of guests and patrons during the normal "mealtimes" which occur when the licensed business establishment is open to the public and that an adequate supply of food is present on the licensed premises to meet such demand.

23 S.C. Code Ann. Regs. 7-19(B)(3) (1976).

6. S.C. Code Ann. § 61-6-1820 (Supp. 2000) provides that a sale and consumption license shall not be granted unless the proposed location meets the minimum distance requirements from churches, schools, or playgrounds as set forth in S.C. Code Ann. § 61-6-120 (Supp. 2000). Section 61-6-120 requires that a location licensed to sell liquor outside of a municipality must be a minimum of three hundred (300') feet from any church, school, or playground. This establishment obviously is much closer to a church. Nevertheless, the provisions of § 61-6-120 do not apply to applications for locations which are licensed at the time the new application is filed with the Department.

7. Although "proper location" is not statutorily defined, the Administrative Law Judge Division 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 operations 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 the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E. 2d 476 (Ct. App. 1984). 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. 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).

8. 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 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. The evidence did not establish that the location is any less suitable for the sale of beer, wine and alcohol now than during the prior years of being licensed. Therefore, the Petitioner meets the statutory requirements for holding a beer and wine permit, and the requirements for holding a restaurant sale and consumption license.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application for an on-premise beer and wine permit and a restaurant sale and consumption license of Russell's Restaurant and Bar, Inc., d/b/a Sidekicks be granted.

IT IS FURTHER ORDERED that the Department of Revenue issue a beer and wine permit and a restaurant sale and consumption license to the Petitioner upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.

_______________________________

Ralph King Anderson, III

Administrative Law Judge

July 12, 2001

Columbia, South Carolina