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:
Roy E. Smith, d/b/a Dogg's Sports Cafe vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Roy E. Smith, d/b/a Dogg's Sports Cafe

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
94-ALJ-17-0304-CC

APPEARANCES:
For the Petitioners: Roy E. Smith (Pro Se)

For the Respondent: South Carolina Department of Revenue

and Taxation: unrepresented

For the Protestants: Francis D. Thompson (Pro Se)
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to the application of Roy E. Smith, d/b/a Dogg's Sports Cafe, ("applicant") for an on-premise beer and wine permit (AI 99949) and a business sale and consumption ("mini-bottle") license (AI 99950) at 699 W. Butler Road, Mauldin, Greenville County, South Carolina ("location").

A hearing was held on November 29, 1994, at the Greenville County Courthouse, Courtroom #4, Greenville, South Carolina. Notice of the hearing was timely given to all parties including the protestants.

The applications were protested by Mr. Francis D. Thompson and his wife, Mrs. Nell Thompson, with both attending the hearing. The issues considered were the suitability of the location and the nature of the proposed business activity. 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 requirements were met.

Prior to beginning the hearing, this Court advised the petitioner of his right to be represented by counsel, right to give testimony, right to cross examine and his appeal rights. The respondent informed the Court that he understood his rights and wished to proceed without an attorney

The application requests by the petitioner are granted.





EXHIBITS

Without objection from the Petitioner or the protestants, 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 Greenville News for the permit and license

3. surety bond

4. sketch of proposed location by SLED agent

5. investigative report by SLED dated September 21, 1994

6. protest letter of Mr. and Mrs. Francis Thompson received by the Department on August 29, 1994

7. lease agreement dated September 20, 1994

8. correspondence between petitioner, protestants and respondent

9. promissory note dated August 11, 1994



SUMMARY OF THE EVIDENCE

The Petitioner/applicant testified that he is 44 years of age, a lifelong resident of Greenville County, South Carolina and that all information provided on the application is correct. He stated that he has previous experience with ABC rules and statutes, having operated the Pub on Pelham. He previously had a beer and wine permit and retail liquor license issued to him but they have expired. He further stated that he has never had any ABC permit or license revoked.

He stated he wanted to operate a restaurant/sports-type bar and grill at the location with the hours of operation from 11:00 a.m. to 12:00 a.m. Monday through Saturday. He intends to be a hands-on manager, working up to eighteen (18) hours daily. It is his intention to serve food with a former McDonald's manager serving as his cook.

As to the location, he stated it has parking spaces available for approximately 100 cars, and is located on a four-lane thoroughfare in the city limits of Mauldin. He further testified that the location is in a commercial area and no church, school or playground is within 300 feet. There is a barbeque restaurant entitled Blazin Bills next door where beer and wine is sold for on-premise consumption and a pub/party shop located at an intersection approximately one block away where beer and wine is sold.

Francis D. Thompson testified as a protestant, he and his wife not wishing to be made parties. He stated he lives approximately three (3) blocks distant from the location and there are eight (8) residences near his home. He testified that the location, if granted the permit and license, would only contribute to past incidents near his home of domestic quarrels, public urination, fights and littering of beer cans and bottles. He stated there are some nine (9) establishments within 1.6 miles of his home that sell beer and wine.

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/sports bar located at 699 W. Butler Road, Mauldin, 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/sports bar at the location Monday through Saturday between the hours of 11:00 a.m. and 12:00 a.m.

9. There are no schools, playgrounds or churches within close proximity to the proposed location.

10. The location adjoins a four-lane highway, has ample parking space and is situated in a generally commercial area within the municipal limits of Mauldin, South Carolina.

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

CONCLUSIONS OF LAW

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

1. Pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and Chapter 23 of Title I of the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction in this matter.

2. 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.

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

4. Pursuant to S.C. Code Ann. § 1-23-630 (Supp. 1993) an administrative law judge has the power to issue those remedial writs necessary to give effect to his jurisdiction.

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 within a municipality, is within three-hundred feet (300') of a church, school or playground.

7. 23 S.C. Code Ann. Regs 7-11 (1976) provides:

With respect to a church or a school, the distance shall be measured from the entrance to the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds of the church or school, or any building in which religious services or school classes are held, whichever is closer. The Alcoholic Beverage Control Commission has determined that the grounds in use as part of the church or school is restricted to the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or buildings and does not extend to the grounds surrounding the church which may be used for beautification, cemeteries, or any purpose other than such part of the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings.

Only one entrance to the grounds of a church or school shall be considered, to wit: the entrance to the grounds nearest an entrance to the church or school building.

Where no fence is involved, the nearest entrance to the grounds shall be in a straight line from the public thoroughfare to the nearest door.

The nearest point of the grounds in use as part of a playground shall be limited to the grounds in use as a playground the grounds necessary for ingress or egress to such grounds from the public thoroughfare.

8. No schools or playgrounds are within the prescribed proximity to render the proposed location unsuitable.

9. 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).

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. 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.

13. 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 Roy E. Smith, d/b/a Dogg's Sports Cafe, for an on-premise beer and wine permit and a business sale and consumption license at 699 W. Butler Road, Mauldin, Greenville County, 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. Smith upon payment of the required fees by the applicant.

AND IT IS SO ORDERED.

Marvin F. Kittrell

Chief Administrative Law Judge

Columbia, South Carolina


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