ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to the
application of J.D. Albright, d/b/a Starlight Lounge, ("applicant") for an on-premise beer and
wine permit (AI 99234) and a business sale and consumption license (AI 99235) at Route 1,
Pageland, South Carolina ("location").
A hearing was held on November 17, 1994, at the Spartanburg County Courthouse,
Spartanburg, South Carolina. Notice of the date, time, place and nature of the hearing was
timely given to all parties including the protestants. The applications were protested by
Fannie Hathaway and Union Hill Church. Neither protestant appeared at the hearing
although notice was timely given. The petitioner and Joe Wade testified on behalf of
granting the permit.
The application requests are granted.
EXHIBITS
The following was placed into evidence:
1. Hearing notice
2. Application by petitioner for on-premise beer and wine permit and retail liquor
license.
3. The affidavit of publication in the Pageland Progressive-Journal
4. South Carolina Law Enforcement Division ("SLED") investigation report
5. Criminal history report
6. Department of Revenue and Taxation's return which did not oppose the
granting of the permit and license, and furthermore, stated that the permit and license would
be granted but for the protest.
7. Affidavits as to the Petitioner's reputation
8. A petition signed by local residents requesting that the permit and license be
granted.
SUMMARY OF THE EVIDENCE
The applicant testified that he is fifty (50) years of age, has a high school
education, and has been a resident of South Carolina for approximately twenty (20) years.
The Petitioner also testified that he leases the building and that the building was
previously licensed at the same location. He further stated that he intends to oversee the
operation with business hours from 4:00 pm. until 12:00 a.m. Monday through Thursday
and from 4:00 p.m. until 2:00 a.m. on Friday and Saturday. The Petitioner acknowledged
he was familiar with ABC laws and regulations and that the club will be in compliance
with those laws and regulations. He also testified the location is ready for business.
Joe Wade also testified. He stated the applicant was of fine character and that the
application, in his opinion, should be granted.
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 Route 1, Pageland, South
Carolina.
3. The club is located in a rural area.
4. The applicant is over twenty-one (21) years of age.
5. The applicant has never had a beer and wine permit or mini-bottle license
revoked within two (2) years preceding the date of the filing of these applications.
6. Notice of the applications have appeared at least once a week for three (3)
consecutive weeks in The Pageland Progressive-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 club at the location from 4:00 p.m. to
12:00 a.m. Monday through Thursday and from 4:00 p.m. to 2:00 a.m. on Friday and
Saturday.
9. The applicant is of good moral character.
10. No protestants were at the hearing.
11. The Petitioner intends to operate the establishment.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the
following:
1. S.C. CODE Ann. § 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. § 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. The Department is authorized to issue retail liquor licenses under the
provisions of S.C. Code Ann. § 61-3-410(3) (Supp. 1993).
6. 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.
7. 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).
8. 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).
9. 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.
10. S.C. Code Ann. §61-9-340 (Supp. 1993) states that upon a determination
that an applicant meets the criteria set forth and has not misstated or concealed a fact in
the application, the S.C. Department of Revenue and Taxation must issue the permit after
payment of the prescribed fee.
11. 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").
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the applications of J.D. Albright for an on-premise beer and wine
permit and a sale and consumption license at Route 1, Pageland, 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. Albright upon payment of the required fees by the applicant.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
December 16, 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. |
