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:
Robert H. Morgan and Morgan & Morgan, Inc., d/b/a The Kwik Shop vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Robert H. Morgan and Morgan & Morgan, Inc., d/b/a The Kwik Shop

Respondents:
South Carolina Department of Revenue

Protestors:
Jimmy Cook, Betty H. Williams, Ruth Bowles, Lois Carastro, Della Lowman, Miriam Fernley, Sally Evans, Oleine Smith and Sara Nicholson
 
DOCKET NUMBER:
94-ALJ-17-0306-CC

APPEARANCES:
James Harrison, Esquire for Petitioner

Jimmy Cook, Miriam Fernley, Sally Evans, Pro Se for Protestors
 

ORDERS:

ORDER AND DECISION

This matter comes before me on the application of Robert H. Morgan for an on-premises beer and wine permit and a restaurant minibottle license for the Kwik Stop restaurant located at 3636 Bush River Road in Columbia, South Carolina. After notice to the parties and protestors, a hearing was conducted on December 9, 1994. Prior to the hearing the protestors moved to be made parties without objection. Based upon the testimony and the evidence presented, I make the following:

FINDINGS OF FACT

1. The applicant, Robert H. Morgan is 30 years old and a life-long resident of South Carolina. He is also a legal resident of the United States.

2. He has never been arrested and is a person of good moral character. No permit or license to sell beer, wine or alcoholic beverages has ever been issued to him and there is no history of any revocations or suspensions.

3. The proposed location at 3636 Bush River Road in Columbia is currently closed. The location has been licensed to sell beer and wine in the past for at least fifteen years. It was formerly a convenience store and then a tavern. Morgan completely renovated, at his expense, the interior space of the building which he rents. The exterior has not changed.

4. The location has a fully equipped kitchen and menu with seating for at least forty or more persons. The menu has been upgraded and enlarged to provide a wide range of entrees. Approximately seventy percent of the revenue would be from food sales and the remaining thirty percent from the sale of alcoholic beverages. When operational, the business will be open Monday through Saturday from 10:30 a.m. until 12 midnight. The location would also have a game room with a pool table, pinball machines and a television. The closest restaurant is the Sandlapper Bar and Grill located in the shopping mall about 100 yards from the proposed location.

5. There are no churches, schools or playgrounds in the vicinity.

6. The residents located across the street from the location protest the issuance of the license because of the type of clientele the previous business attracted and the problems caused by those patrons. The previous business, called The Kwik Stop, was a pool room and beer joint that played loud music. The patrons of the former Kwik Stop raced the engines of their cars or motorcycles, loitered around the outside, and left beer cans and trash in the neighborhood. This area also has a problem with traffic congestion not related to the operation of the Kwik Stop.

7. The residents fear that using the same name (The Kwik Stop), not changing the exterior of the building, and having a game room with a pool table and pinball machines will attract the same clientele that caused problems in the past.

8. Notice of the application was posted and the location and published in The State newspaper for the time period required. An alcoholic liquors bond was provided by Morgan.

CONCLUSIONS OF LAW

1. The Administrative Law Judge Division is vested with the powers, duties and responsibilities exercised by the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23 of Title 1. S.C. Code of Laws §61-1-55 (Supp. 1993).

2. S.C. Code of Laws §61-9-320 (Supp. 1993) provides the statutory requirements for the issuance of beer and wine permits. It states:

No permit authorizing the sale of beer or wine may be issued unless:

(1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises, are of good moral character.

(2) The retail applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of applicant.

(3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained this principal place of abode in South Carolina for at least thirty days before the date of application or has been licensed previously under the laws of this State.

(4) The applicant, within two years before the date of applicant, has not had revoked a beer or a wine permit issued to him.

(5) The applicant is twenty-one years of age or older.

(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one. The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. This item does not apply to locations licensed before its effective date.



(7) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department shall determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. Applicants for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.

(8) Notice has been given by displaying a sign for fifteen days at the site of the proposed business.

The sign must:

(a) state the type of permit sought;

(b) tell an interested person where to protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the department.



Section 61-9-320, S.C. Code of Laws (Supp. 1993).

3. Although "proper location" is not statutorily defined, "rather 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 (S.C. 1981). This determination of suitability is not solely a function of geography, but involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact upon the community where it is to be situated. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel v. S.C. ABC Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).

4. The major complaint by the residents of the area is that the clientele of the former Kwik Stop beer joint created problems in the neighborhood. Their concerns about attracting the same type of clientele are valid in light of the fact that the restaurant will have the same name and no change of appearance on the outside. However, this Division is not empowered to require a business to change its name and the refusal to issue a license should not be based on that factor. If the same clientele appear at the location and cause the same type of problems, it is Morgan's responsibility to control the activities of his patrons and to conduct his place of business in an orderly manner.

5. Section 61-5-50 provides the criteria for the issuance of a sale and consumption license. It states:

The department may grant a license upon finding:

(1) The applicant is a bona fide nonprofit organization or the applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging, as described in Section 61-5-10.

(2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a reputation for peace and good order in its community, and its principals are of good moral character.

(3) As to business establishments or locations established after November 7, 1962, Section 61-3-440 has been complied with.

(4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to given notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. The department shall determine which newspaper meet the requirements of this section based on available circulation figures. However, if a newspaper is published within the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. Applicants for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if it is approved by the department.



(5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business.

The sign must:

(a) state the type of license sought;

(b) tell an interested person where to protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the department.

(6) The applicant is twenty-one years of age or older.

(7) The applicant is a legal resident of the United States and has been a resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.

Section 61-5-50, S.C. Code of Laws (Supp. 1993).

6. Morgan meets the statutory criteria for the issuance of a sale and consumption license.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, Robert H. Morgan is entitled to the issuance of a beer and wine permit and a restaurant minibottle license for The Kwik Stop restaurant located at 3636 Bush River Road in Columbia, South Carolina. It is therefore,

ORDERED, that the Department of Revenue and Taxation shall issue to Robert H. Morgan and Morgan & Morgan, Inc., an on-premises beer and wine permit and a restaurant minibottle license for the location stated above upon the payment of the appropriate fees.

AND IT IS SO ORDERED.





____________________________

ALISON RENEE LEE

Administrative Law Judge Division



January _____, 1995

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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