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:
James C. Hawkins, d/b/a Red Snapper of Anderson vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
James C. Hawkins, d/b/a Red Snapper of Anderson

Respondents:
South Carolina Department of Revenue and Reverend Ron Fousek
 
DOCKET NUMBER:
94-ALJ-17-0267-CC

APPEARANCES:
For the Petitioners: Richard E. Thompson, Jr., Esquire

For the Respondent: South Carolina Department of Revenue and Taxation: unrepresented

For the Protestant: (Pro Se)
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE




This matter comes before the Administrative Law Judge Division pursuant to the application of James C. Hawkins, d/b/a Red Snapper of Anderson, ("applicant") for an on-premise beer and wine permit (AI 99325) and a business sale and consumption license (AI 99326) at 4802 Highway 29 North, Anderson County, South Carolina ("location").

A hearing was held on November 28, 1994, at the Greenville County Courthouse, Greenville, South Carolina. Notice of the time, date, place and nature of the hearing was timely given to all parties including the protestant.

The applications were protested by Reverend Ron Fousek, Pastor, Whitefield Baptist Church, with only Rev. Fousek appearing and testifying. Rev. Fousek wished to be made a party and his motion was granted. As outlined in its Pre-Hearing Statement, the South Carolina Department of Revenue and Taxation ("department") was not represented at the hearing and did not object to the issuance of the permit and license.

The applications requested by the petitioner are granted with restrictions.





EXHIBITS

Without objection, copies of those portions of the department's file set forth hereafter were made a part of the record:

1. application by petitioner for on-premise beer and wine permit and retail liquor license with rental agreement

2. publication notices in The Journal for the permit and license

3. surety bond

4. sketch of proposed location

5. investigative report by SLED dated July 27, 1994

6. protest letter by Rev. Fousek

7. criminal history report

8. certificate of Grade "A" health rating

9. correspondence between petitioner, protestants and respondent

Also, the petitioner introduced the following which were made exhibits without objection:

1. sketch

2. seventeen (17) photographs of the location

3. tax map sheet #197 showing the location

Over the objection of the Petitioner, a six (6) page petition of signatures in opposition to the issuance of the permit and license was introduced by the Respondent, Rev. Fousek, and made a part of the record. However, little weight is given to the petition in that the Petitioner is unable to cross-examine any of the signatories thereto.

SUMMARY OF THE EVIDENCE


The Petitioner testified that he is 56 years of age, married, a resident of Anderson County for the last thirteen (13) years, the owner and operator of a barbecue restaurant for the last ten (10) years recently changing the name to Red Snapper of Anderson. He stated he lives behind the location, owning the restaurant property and his residence.

As to his background, he stated he was in the Air Force for six (6) years, worked for a period of time in the telephone field and as a police officer (five (5) years). He stated he has no criminal record.

Mr. Hawkins state that some twenty (20) years ago he had experience selling beer and wine and he needs the permit and license now to remain commercially competitive. He stated the restaurant has no live bands, juke boxes or poker machines. He testified there are no churches, schools or playgrounds within five hundred feet (500') of the location, it being in a rural area, between Anderson and Williamston, and it is outside any municipal limits.

Reverend Ron Fousek testified that he has been the pastor of the Whitefield Baptist Church the last fourteen (14) years, it being a church of some nine-hundred and fifty (950) members located approximately 3/10 mile from the location. He stated that he and his church protested the issuances of the permit and license primarily because the grant of the sales of beer, wine and liquor would introduce a negative influence in the community, it being a moral issue. However, he was also concerned about the potential traffic problem at the intersection where the restaurant is located, there having been many accidents there in the past. On cross-examination, he admitted that most of the traffic generated at the nearby "Jockey Lot" is gone by the time the restaurant opens up at 4:30 p.m. in the afternoon. He also acknowledged that the restaurant is clean; petitioner is a hands-on manager, that he himself had eaten at the restaurant; the food at the restaurant was good; and that families and senior citizens eat at the restaurant.



FINDINGS OF FACT


By a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. The applicant is seeking an on-premise beer and wine permit and a sale and consumption ("mini-bottle") license for a restaurant located at 4802 Highway 29 North, Anderson County, South Carolina.

3. The applicant is of good moral character.

4. The applicant has been a legal resident of South Carolina for over thirty days and maintained his principal place of abode in South Carolina for over thirty days.

5. The applicant has never had a beer and wine permit or mini-bottle license revoked.

6. Notice of the applications have appeared at least once a week for three (3) consecutive weeks in The Journal, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

7. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

8. The applicant intends to operate a restaurant at the location seven days a week.

9. There are no schools or playgrounds in close proximity to the proposed location and the nearest church is 3/10 mile in distance as shown on the SLED sketch.

10. The property is located in a rural area with commercial properties in the general vicinity.

11. The applicant is over twenty-one (21) years of age.

12. There are no juke boxes, video machines or live music/bands at the location.



CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:

1. S.C. Code Ann. Section 1-23-600 (Supp. 1993) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. CODE Ann. Section 61-1-55 (Supp. 1993) grants to the Administrative Law Judge Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. S.C. CODE Ann. Section 61-9-320 (Supp. 1993) sets forth the requirements for the issuance of an on-premise beer and wine permit.

4. S.C. Code Ann. Section 61-5-50 (Supp. 1993) sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license.

5. S.C. Code Ann. § 61-3-420 (Supp. 1993) defines persons ineligible for the granting of a license.

6. S.C. Ann. § 61-3-425 (Supp. 1993) requires an applicant seeking a liquor license to present to the Department of Revenue and Taxation a signed statement both from the Department and the Internal Revenue Service showing the applicant doesn't owe the state or federal government delinquent taxes, penalties or interest.

7. The Department is authorized to issue retail liquor licenses under the provisions of S.C. Code Ann. § 61-3-410(3) (Supp. 1993).

8. S.C. Code Ann. § 61-3-440 (Supp. 1993) prohibits the issuance of a liquor license for on-premise consumption to an applicant if the place of business (location), if located outside a municipality, is within five hundred feet (500') of a church, school or playground. However, locations for which beer and wine permits are requested are not subject to those specific restrictions.

9. A permit or license must not be issued if an applicant does not meet the standards of S.C. Code Ann. § 61-3-730 (Supp. 1993).

10. As 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).

11. The determination of suitability of a location is not necessarily a function solely of geography. It involves 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).

12. Although "proper location" is not statutorily defined, broad discretion is vested in the Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).

13. There has been no showing that the present location is unsuitable, is not a fit location, that it would increase stress in terms of the resident's safety, or create any additional traffic problems. The proposed location and business activity are suitable and proper because of the rural and commercial nature of the surrounding area.

14. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State 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).

15. 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.

16. It is concluded that the applicant meets all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption ("mini-bottle") license and accordingly, I conclude that the proposed location is a proper one for granting the sale of beer and wine for an on-premise consumption permit and the sale and consumption ("mini-bottle") license.

ORDER

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

ORDERED that the applications of James C. Hawkins for an on-premises beer and wine permit and a sale and consumption license at 4802 Highway 29, North, Anderson County, South Carolina be granted, with the following restrictions and conditions, upon the applicant signing a written agreement to be filed with DOR to adhere to the stipulations set forth below:



1. James C. Hawkins and his employees shall prohibit loitering and the consumption of beer, wine or liquor in the parking lot of the proposed location and strictly enforce the prohibition.

IT IS FURTHER ORDERED that a violation of the above conditions is considered a violation against the permit and may result in a fine, suspension, or revocation.

IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue the permit upon payment of the required fees and costs by the applicant.

AND IT IS SO ORDERED.





________________________________

Marvin F. Kittrell

Chief Administrative Law Judge

Columbia, South Carolina

____________________, 19____


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