South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Ju Shin Park, d/b/a, Charlie's vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Ju Shin Park, d/b/a, Charlie's

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-17-0184-CC

APPEARANCES:
James H. Harrison, For Applicant

Ansell Gantt, 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 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


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court