ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to the
application of Wesley H. Burbage, d/b/a Wesley's Nightlife, ("applicant") for an on-premise
beer and wine permit (AI 99535) and a business sale and consumption license (AI 99536)
at 1604 Easley Bridge Road, Greenville, Greenville County, South Carolina ("location").
A hearing was held on November 7, 1994, at the Administrative Law Judge Division
hearing Room, Columbia, South Carolina. Notice of the hearing was timely given to all
parties including the protestants.
The applications were protested by Reverend Glenn T. Bryant, Pastor, Welcome
Baptist Church, N. Michael Ennis and Representative James G. Mattos, with only Mr.
Mattos appearing and testifying. Mr. Mattos did not wish to be made a party. 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 if all statutory kitchen and restaurant requirements were met.
The application requests by the petitioner are granted.
EXHIBITS
Without objection, 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 Greenville News for the permit and license
3. surety bond
4. sketch of proposed location
5. investigative report by SLED dated August 18, 1994
6. protest by N. Michael Ennis dated August 18, 1994
7. criminal history report from SLED dated August 18, 1994 with attachment
8. lease agreement dated August 1, 1994
9. protest dated August 11, 1994 by Representative James G. Mattos
10. protest by Reverend Glenn T. Bryant, Pastor, Welcome Baptist Church dated
August 11, 1994.
11. correspondence between petitioner, protestants and respondent
Also, the petitioner introduced the following which were made exhibits without objection:
1. eight (8) photographs of the location
2. Greenville recreation district handouts re: boxing training
3. letter from Walter H. Atkins, Building Manager, Greenville Memorial
Auditorium, dated September 13, 1994
4. letter of Debbie Davis, manager of The Movie Place, dated November 4, 1994
SUMMARY OF THE EVIDENCE
Representative Mattos spoke first, stating that he was appearing to protest the
issuance of both the permit and license due to the location's closeness to a nursing home and
for no other reason. He had no objection to the applicant.
Next, the petitioner/applicant testified to the following:
1. He is seeking an on-premise beer and wine permit and a business sale and
consumption license ("mini-bottle") for the location at 1604 Easley Bridge Road, Greenville,
South Carolina.
2. He is 38 years of age and has been a resident of South Carolina all his life. He
stated that he was a loomfixer for approximately 10 years and has operated a pool room and
lounge.
3. As to the location, he will operate it as a restaurant, hoping to attract working-class people with the hours of operation to be between 10:00 a.m. and 12:00 p.m.
4. He stated that Welcome Baptist Church is some 4-5 miles distant from the
location and that the nursing home of which Representative Mattos spoke is located some
distance behind the location, separated therefrom by chain-link fences and residences and
fronts on another highway. Also, he stated that Embers Lounge is located several store
buildings distant from the location, fronts on Easley Bridge Road and that its owner has an
on-premise beer and wine permit.
5. As to parking for the location, he testified that there were 100-200 car spaces
available.
FINDINGS OF FACT
Based upon the testimony, the credibility of the witnesses and the evidence presented,
I make the following Findings of Fact:
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 1604 Easley Bridge Road,
Greenville, Greenville 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 Greenville News, 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/lounge at the location seven days
a week between the hours of 10:00 a.m. and 12:00 a.m.
9. There are no schools or playgrounds in close proximity to the proposed
location and the nearest church is 757 feet in distance as shown on the SLED sketch.
10. The applicant is over twenty-one (21) years of age.
CONCLUSIONS OF LAW
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 sets forth the requirements for the issuance
of a sale and consumption ("mini-bottle") license.
5. 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).
6. 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 traffic
problems.
7. 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 if all kitchen and restaurant requirements are complied with.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the applications of Wesley H. Burbage for an on-premise beer and
wine permit and a sale and consumption license at 1604 Easley Bridge Road, Greenville,
South Carolina be granted and
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue the
permit for an on-premise beer and wine permit and the sale and consumption license to Mr.
Burbage upon payment of the required fees by the applicant and upon his complying with
all kitchen and restaurant requirements.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
November 15, 1994
APPEAL RIGHTS
Any party aggrieved by this Decision and Order may appeal it by filing an appeal with
the South Carolina Department of Revenue & Taxation, 301 Gervais Street, P.O. Box 125,
Columbia, SC 29201, telephone number 734-0470. In accordance with SC Code Ann. §1-23-610(A) )Supp. 1993), the appeal must be filed within thirty (30) days after receipt of
notification of this decision. |
