South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Shenice L. Kirksey, d/b/a Hudson Street Cafe vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Shenice L. Kirksey, d/b/a Hudson Street Cafe

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-17-0182-CC

APPEARANCES:
James H. Harrison, Attorney for Applicant

James Grubbs, (pro se) Spokesman for Protestants
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for an on-premises beer and wine permit for 101 S. Hudson Street, Greenville, South Carolina, by Shenice L. Kirksey filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on July 25, 1994. The issues considered were: (1) the applicant's eligibility to hold a permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The permit application is hereby denied.

FINDINGS OF FACT

By a preponderance of the evidence, I find:

(1) Applicant seeks an on-premises beer and wine permit for a location at 101 S. Hudson Street, Greenville, South Carolina, having filed an application with DOR, AI #98482, on April 21, 1994.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, the South Carolina Law Enforcement Division (hereinafter referred to as "SLED"), and DOR.

(4) The proposed location is currently operating as a cafe- type restaurant with billiards and video poker machines.

(5) The proposed location is located at the corner of S. Hudson and Oscar Streets in the Southernside neighborhood of the City of Greenville.

(6) Testifying in opposition to the application were: Officer James Grubbs, Greenville Police Department; Rev. J.M. Flemming; Lillian Flemming, Greenville City Councilwoman and Chairman of the Brockwood Apartment Board of Directors; and Mary Duckett, President of the Southernside Neighborhood Association.

(7) Residents of the area are in fear for the safety of themselves and their children from persons under the influence of alcohol and/or other drugs.

(8) The proposed location, previously licensed under former operators, has a history of being a meeting place for drug dealers and users, vagrants, and loiterers, with nearby residents complaining of noise, unruly crowds, and illegal activities.

(9) The Southernside neighborhood is undergoing a revitalization effort with federal, state, and local assistance to build new homes and recruit businesses consistent with the residential setting of the area.

(10) Applicant was involved in an incident at the proposed location on May 22, 1994, in which she fired a gun three times into the rear window of an automobile leaving the premises.

(11) Applicant was convicted in 1980 and 1981 of Fraudulent Check charges.

(12) The applicant is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained her principal residence in South Carolina for more than one year.

(13) The applicant has not had a permit revoked in the last two years.

(14) The applicant, who intends to be the manager of the business, is of unsuitable character and temperament to hold a beer and wine permit.

(13) Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.

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 Judge Division is empowered to hear this case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and Chapter 23 of Title I of the 1976 Code, as amended.

(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the criteria to be met before issuance of a beer and wine permit.

(3) Pursuant to S.C. Code Ann. § 61-3-730 (Supp. 1993), a permit must not be issued if the applicant is not a suitable person to be licensed, the place of business is not a suitable place, or a sufficient number of licenses have already been issued in the State, municipality, or community.

(4) As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d 705 (S.C. App. 1984).

(5) The proposed location is unsuitable for the sale of beer and wine because of the tendency of the location to attract drug users and dealers, vagrants, and other unsavory persons.

(6) The proposed location is unsuitable for the sale of beer and wine because of the residential nature of the community and the presence of children in the area.

(7) The proposed location is unsuitable for the sale of beer and wine in lieu of the revitalization efforts of the community.

(8) Applicant is an unsuitable person to be licensed because of poor temperament and judgment, as exhibited by the past fraudulent check convictions and the May 22, 1994, incident in which she discharged a firearm at the proposed location.

ORDER

IT IS THEREFORE ORDERED that DOR deny the on-premises beer and wine permit applied for.

___________________________

STEPHEN P. BATES

Administrative Law Judge

July 27, 1994

Columbia, South Carolina


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