ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C.
Code Ann. §§ 61-1-55, et seq. (Supp. 1993) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev.
1986 and Supp. 1993) for a hearing pursuant to the application of Antonio Randazzo, Nuova
Vita, Inc., d/b/a Main Street Fountain and Grill, ("applicant") for an on-premise beer and
wine permit (AI 99621) at 203 Main Street, Fort Mill, York County, South Carolina
("location").
A hearing was held on February 23, 1995, at The Administrative Law Judge Division
hearing room, Columbia, South Carolina. Notice of the time, date, place and nature of the
hearing was timely given to all parties including the protestant. The issues considered were:
1) the suitability of the proposed location, and 2) the nature of the proposed business activity.
The application was protested by Evans J. Newell who appeared and testified. Mr.
Newell wished to be made a party and his motion was granted.
The application requested by the Petitioner is 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, rental agreement
and source of funds statement (with attachments)
2. affidavit of publication notice in The Herald for the permit
3. shareholder certificate of Nuova Vita, Inc.
4. sketch of proposed location
5. investigative report by SLED dated September 13, 1994
6. protest letter by Evans J. Newell
7. criminal history reports from SLED
Also, each party introduced into evidence, without objection, various photographs and
sketches/maps/drawings of the area where the proposed location is situated.
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 for a restaurant
at 203 Main Street, Fort Mill, York County, South Carolina.
3. The applicant is over twenty-one (21) years of age and has not had an
application revoked within the two (2) years preceding the date of the filing of this
application.
4. Notice of the application has appeared at least once a week for three (3)
consecutive weeks in The Herald, a newspaper of general circulation in the local area where
the applicant proposes to engage in business.
5. 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.
6. 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.
7. The applicant is of good moral character.
8. The applicant has never had a beer and wine permit or mini-bottle license
revoked.
9. The applicant intends to operate a restaurant at the location with his daughter-in-law, Barbara Jean Oriani, between the hours of 6:00 a.m. and 12:00 p.m. There is a stage
in the location and the applicant intends to operate the business as a dinner-theater.
Applicant and his immediate family operate six restaurants at the present time and intend to
serve food at this location. There is no bar in the location now and applicant has no
intentions to install one in the future.
10. There are no schools or churches within close proximity to the proposed
location. However, there is a city park close by.
11. The restaurant is located on Main Street in Fort Mill, South Carolina which is
all commercial. There are residential areas nearby, however.
12. The location was objected to by Evans J. Newell for the following reasons:
(1) churches are located within a one mile radius;
(2) a branch of the York County library is located one block away;
(3) residential neighborhoods are close by;
(4) Main Street is clogged with traffic at various
times during the year and the restaurant's patrons
would contribute to this traffic congestion
problem;
(5) concerns about "clientele" at the restaurant when
live bands are performing.
13. There is a liquor store (ABC) across the street from the location where liquor
may be purchased for off-premise consumption.
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. § 61-9-320 (Supp. 1993), which sets forth the requirements
for the issuance of a beer and wine permit, provides in part:
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 Sate 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.
3. The wholesale applicant is a legal resident of the United States and has
been 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 or has
been licensed previously under the laws of this State.
4. The applicant, within two years before the date of application, 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.
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.
8. Notice has been given by displaying the required sign for fifteen
days at the site of the proposed business.
The applicant meets all the statutory requirements set forth above and has made an
adequate showing on each of the above state grounds for issuance of the permit.
4. S.C. Code Ann. § 61-3-440 (Supp. 1993) states that the Department shall not
issue certain licenses to a place of business within a certain distance of a church, school or
playground; however, locations for which beer and wine permits are requested are not
subject to those specific restrictions.
5. As the 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).
6. 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. The testimony of applicant and his daughter-in-law is
credible as to their intent to operate a dinner-theater with emphasis on food sales, not beer
and wine sales. The location is primarily in a commercial location and should not pose any
detriment or nuisance to activities at any church, school or playground.
7. 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).
8. 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.
9. 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).
10. There has been no sufficient showing that the present location is unsuitable,
is not a fit location, or that it would increase stress in terms of residents' safety, or create
traffic problems.
11. It is concluded that the applicant meets all of the statutory requirements for
holding a retail beer and wine permit and accordingly, I conclude that the proposed location
is a proper one for granting the beer and wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Antonio Randazzo for an on-premise beer and
wine permit at 203 Main Street, Fort Mill, York County, South Carolina be granted, with the
following restriction:
1. No exterior/outside speakers will be allowed at the location. Further, all live
music will be kept to a minimum to avoid any nuisance to anyone outside the location.
IT IS FURTHER ORDERED that a violation of the above condition 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
March 8, 1995 |
