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 and Supp. 1993) upon an application for an on-premises beer and wine permit at 2708 Rosewood Drive, Columbia, South Carolina, by Ju Shin
Park filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to
as "DOR"). A hearing was held on July 27, 1994. The issues considered were: (1) the
applicant's eligibility to hold a permit; (2) the suitability of the proposed location; and (3) the
nature of the proposed business activity. The permit application is hereby granted, with
restrictions.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) The applicant seeks an on-premises beer and wine permit for 2708 Rosewood Drive,
Columbia, South Carolina, having filed an application with DOR, AI #96228, on October 14,
1993.
(2) The proposed location was previously licensed to sell beer and wine during a twenty
year period under former a former permittee until 1990, when the permit was not renewed.
(3) The proposed location was purchased by Ms. Kim Boineau in 1990.
(4) Upon purchase of the proposed location, Ms. Boineau was informed that she was
ineligible for a beer and wine permit by virtue of having a previous sale and consumption license
at another location revoked.
(5) Patrick K. Huggins applied for a beer and wine permit and minibottle license for the
proposed location in 1992. After a contested case hearing, the applications were denied.
(6) Anthony Asmer applied in June and December of 1992 for a beer and wine permit and
minibottle license for the proposed location but failed to show a material change in the location.
(7) Applicant submitted the present beer and wine permit application and requested a
hearing to determine whether there had been a substantial material change in the location. A
hearing was held on May 2, 1994, before Administrative Law Judge Alison Renee Lee, after
which Judge Lee rendered an Order dated May 25, 1994, finding a substantial material change in
the location and ordering the processing of the application.
(8) Notice of the time, date, place, and subject matter of the hearing was given to the
applicant, protestants, the South Carolina Law Enforcment Division (hereinafter referred to as
"SLED"), and DOR.
(9) Applicant's DOR file, AI #96228, was incorporated into the record without objection.
(10) Judge Lee's Order of May 25, 1994, and the entire Administrative Law Judge
Division file for the May 2, 1994, hearing, Docket Number 94-ALJ-0004, was incorporated into
the record for the present hearing without objection.
(11) The proposed location is located on a four-lane road in a commercial area zoned for
commercial usage, within the municipal boundaries of the City of Columbia, adjacent to a
residential neighborhood.
(12) The proposed location is a pool hall.
(13) The proposed location is currently unlicensed but is operating as a pool hall allowing
patrons over the age of twenty-one (21) years to bring beer and wine on the premises for
consumption.
(14) The intended hours of operation are 11:00 a.m. - 1:00 a.m., Monday through
Saturday.
(15) There are several other licensed locations within close proximity to the proposed
location.
(16) The following protestants appeared and testified in opposition to the application:
Rev. Frank Keels, pastor of Rosewood Baptist Church; Michael Dickson, co-owner of
Montessori Preschool of Columbia; Lisa Threat-Moore, President of the Rosewood Merchant's
Association; and Mel Jenkins a Rosewood resident and realtor.
(17) Protestant Rev. Keels and the congregation of Rosewood Baptist Church oppose the
licensing of locations along Rosewood Drive, in general.
(18) Rosewood Baptist Church is three blocks from the proposed location on the
opposite side of Rosewood Drive.
(19) The proposed location was licensed to sell beer, wine, and liquor under a former
licensee in 1988 when Protestant Dickson and his wife first purchased and opened the Montessori
Preschool of Columbia located at 409 S. Woodrow Street.
(20) The Montessori school's business hours are 7:30 a.m. - 6:00 p.m.
(21) Lisa Threatt-Moore, testifying on behalf of the Rosewood Merchants Association
and advocating the Association's desire to make Rosewood Drive a healthy business district,
proposed the following restrictions to Applicant's permit, if granted: immediate revocation if
minors served; daily pick up of litter on licensed premises before 9:00 a.m. daily; and immediate
revocation if six or more police incident reports are received for the proposed location within a
twelve-month period.
(22) Applicant offered to agree to the following stipulations in order to have the permit
granted: no beer sales prior to 6:00 p.m. daily; daily litter pick up each morning; and employment
of a security guard on the premises during beer service hours.
(23) Applicant is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained his principal residence in South Carolina for more than one year.
(24) 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.
(25) Applicant has never had a license or permit revoked.
(26) Applicant is of good moral character.
(27) Applicant has prior experience operating licensed locations in Pennsylvania and
California.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1993) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1993) provides the applicable criteria for the
issuance of a beer and wine permit.
(3) A permit or license must not be issued under S.C. Code Ann. § 61-3-730 (Supp.
1993) 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) The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve an infinite variety of considerations related to the nature and
operation of the proposed business and its impact on the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 335 (1985).
(5) S.C. Code Ann. § 61-1-70 (Supp. 1993) provides for the adoption of rules and
regulations to carry out the provisions of the Alcoholic Beverage Control Act.
(6) 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to
permits, provides:
Any stipulation and/or agreement which is
voluntarily entered into by an applicant in
writing for a beer and wine permit between the
applicant and the South Carolina Alcoholic
Beverage Control Commission, if accepted by the
Commission, will be incorporated into the basic
requirements for the enjoyment and privilege of
obtaining and retaining the beer and wine permit
and which shall have the same effect as any and
all laws and any and all other regulations
pertaining to the effective administration of
beer and wine permittees.
In the event that evidence is presented to
this Commission that any part of the stipulation
or agreement is or has been knowingly broken by
the permittee will be a violation against the
permit and shall constitute sufficient grounds
to suspend or revoke said beer and wine permit.
(7) Permits and licenses issued by the State for the sale of liquor, beer, and wine are not
rights or property. They are privileges granted in the exercise of the police power of the state to
do what otherwise would be unlawful to do and to be used and enjoyed only so long as the
restrictions and conditions governing them are complied with. As the tribunal authorized to grant
the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise
authorized to place restrictions or conditions on the permit or license. See Feldman v. South
Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
ORDER
IT IS THEREFORE ORDERED that DOR issue the on-premises beer and wine permit
applied for, with the following restrictions and conditions, upon Applicant signing a written
agreement to be filed with DOR to adhere to the stipulations set forth below:
(1) Applicant is prohibited from selling or serving beer and wine on the licensed premises
prior to 6:00 p.m., Monday - Friday;
(2) Applicant shall employ a professional uniformed security guard to patrol the parking
lot and business premises during the business hours in which beer and wine are being sold and
served;
(3) Applicant shall pick up litter on the licensed premises, including the parking lot, the
sidewalk, and the street immediately adjacent to the business, each morning following business
operation, no later than 9:00 a.m.;
(4) Ms. Kim Boineau is prohibited from being employed, managing, or having any other
role in the operation of Charlie's except for such duties as is required in her capacity as landlord of
the premises.
IT IS FURTHER ORDERED that a violation of any of the above conditions is
considered a violation against the permit and may result in a fine, suspension, or revocation.
___________________________
STEPHEN P. BATES
Administrative Law Judge
August 10, 1994
Columbia, South Carolina |