ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2001) and S.C. Code Ann. § 1-23-310 et seq.
(Supp. 2001) upon filing of an application by Petitioner B and T Sports, Inc., d/b/a B and T Sports ("Petitioner"), an alleged
non-profit organization, for an on-premises beer and wine permit and a sale and consumption ("mini-bottle") license for a
location at 1668 Two Notch Road, Lexington, South Carolina. After conducting an investigation, the South Carolina
Department of Revenue ("Department") denied Petitioner's application on two bases: (1) Petitioner is not a bona fide non-profit organization; and (2) the Department received a written protest to the application. As a result, the Department
transmitted the case to the Administrative Law Judge Division ("ALJD") for a hearing. Prior to the hearing, the sole
Protestant, James E. Dubose, withdrew his protest. After timely notice to the parties, a contested case hearing was held on
August 12, 2002, at the ALJD in Columbia, South Carolina. Anthony Keisler testified in support of Petitioner's
applications. Upon review of the relevant and probative evidence and applicable law, the application for an on-premise
beer and wine permit is granted. However, the application for a sale and consumption license is denied.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the
credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of the evidence:
- Notice of the time, date and place of the hearing was given to the Petitioner, the Protestants, and the Department.
- The Petitioner seeks an on-premises beer and wine permit and sale and consumption license for its location at
1668 Two Notch Road, Lexington, South Carolina ("proposed location").
- Petitioner was organized as a private club in April 2002. Soon thereafter, Petitioner applied for the subject permit
and license. Subsequently, Petitioner was issued a temporary beer and wine permit.
- The club is organized as a non-profit corporation in the state of South Carolina. The club is governed by a Board
of Directors. However, the Keislers, together with their accountant, chose the Board. At the time of its
application, Petitioner had no members. Since its application, however, Petitioner has acquired 378 members and
the Board has denied membership to 2 persons. A meeting of the club's membership was held in late July 2002.
Petitioner associates itself with the March of Dimes charity.
- The Keislers operate the club as a business. Prior to opening the club, Anthony Keisler worked as a welding
engineer and traveled a good bit. Anthony Keisler used money from his 401(k), together with a $250,000 loan, to
purchase the property upon which the proposed location is situated. The Keislers applied for a mini-bottle license
as a non-profit because the building does not have a full kitchen set up to serve meals and they were advised their
only other business option was to apply as a non-profit. In its application, Petitioner averred that the Keislers
own the corporation in the following percentages: 95% by Mary Keisler; and 5% by Anthony Keisler.
- The Keislers own the property upon which the actual club is situated. They also own the club building itself.
However, with the exception of the beer coolers, all other business implements, such as tables and chairs, are
rented by the Petitioner.
- Respondent has no objections to the issuance of a beer and wine license to Petitioner.
- The evidence does not establish that Petitioner is a bona-fide non-profit organization.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
- Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001), S.C. Code Ann. § 1-23-600(B) (Supp. 2001) and S.C. Code Ann.
§ 1-23-310 et seq. (Supp. 2001) the South Carolina Administrative Law Judge Division has jurisdiction in this matter.
- S.C. Code Ann. § 61-4-520 provides that the Department may issue an mini-bottle license upon finding:
1)The applicant is a bona fide nonprofit organization... ,
***
S.C. Code Ann. § 61-6-1820 (1) (Supp. 2001).
3. S.C. Code Ann. § 33-31-101, et seq., (Supp. 2001) and 23 S.C. Code Ann. Regs. 7-17 (Supp. 2001) set forth the criteria
for a bona fide nonprofit corporation to be eligible for a mini-bottle license.
4. 23 S.C. Code Ann. Regs. 7-17 (A) provides that no license shall be "granted to or held by an organization which is, or
has been, organized and operated primarily to obtain or hold a license to sell alcoholic beverages."
- Because the Keislers freely admit that they chose the nonprofit corporate structure because it was the only method
by which Petitioner could get a mini-bottle license, Petitioner is ineligible to hold a mini-bottle license as a
nonprofit corporation. However, as Respondent does not oppose the issuance of a beer and wine permit,
Petitioner's application for said permit is granted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that Petitioner's application for a sale and consumption ("mini-bottle") license for the
proposed location, known as PT's 1109, 1109 Assembly Street, Columbia, South Carolina is DENIED;
IT IS FURTHER ORDERED that Petitioner's application for an on-premises beer and wine permit is GRANTED subject
to the payment of all requisite fees to Respondent;
AND IT IS SO ORDERED.
___________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
August 12, 2002
Columbia, South Carolina |
