ORDERS:
ORDER AND DECISION
This matter comes before me on the application of William McMillian for an on-premises beer
and wine permit and for a restaurant minibottle license for The Pub located at 559 Frazier Street in
Florence, South Carolina. After notice to the parties and protestors, a hearing was conducted on
January 11, 1995. No protestors appeared at the hearing. Based upon the evidence and testimony
provided, I make the following:
FINDINGS OF FACT
1. The applicant, William McMillian, is a fifty year old life long resident of the State and
is a legal resident of the United States.
2. He has been convicted of breach of trust in 1978 and other minor misdemeanors in
1983 and 1984. In May 1994, he denies being convicted of a driving under the influence charge,
although he admits being arrested for that offense. Although the Florence Police protested the
application, no one appeared at the hearing. He is a person of good moral character.
3. No license for the sale of beer and wine has ever been issued to McMillian and there
have been no violation of laws relating to the sale of beer and wine.
4. The proposed location is 559 Frazier Street in Florence. This is primarily a residential
area with a few businesses. The location has not been open but the anticipated hours of operation
will be 12:00 noon to 1:00 a.m. Tuesday through Saturday. The Pub can accommodate 60 people
and will serve sandwiches. The investigative report indicates that the business does not have a fully
equipped kitchen or a Grade A restaurant rating from the Health Department. There was no evidence
to refute this.
5. The location is not near any schools, churches, or playgrounds. There is a
convenience store in the area that sells beer and wine to go. Other locations in the vicinity also sell
beer and wine to go.
6. The business will be operated by McMillian and Thaddeus Barr. Mr. Barr is of good
moral character.
7. Notice of the application was posted at the location and published in The Florence
Morning News for the required time period.
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 § 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.
3. There is no single criterion or standard for determining the meaning of the term "good
moral character" and the licensing authority must judge whether the acts and conduct shown are
sufficient in themselves or as an index to character to disqualify an applicant. 1969 Atty. Gen. Op.
2709 at 160; 48 C.J.S. Intoxicating Liquors § 135(b) at 243. A liquor license may be refused a
person who has been convicted of a crime or crimes, particularly a violation of the liquor laws. Wall
v. S.C. ABC Commission, 269 S.C.13, 235 S.E.2d 806 (S.C. 1977). The Division would not be
justified in refusing a license based simply upon a "moral appraisal", or because the previous
misconduct is not relevant to the conduct of the business for which the license is sought. 1969 Atty.
Gen. Op. 2709 at 160. The misdemeanor crimes of which McMillian have been convicted do not
relate to any liquor laws. The convictions also occurred over ten (10) years ago and are not current
to warrant a finding that he lacks good moral character.
4. S.C. Code § 61-5-50 (Supp. 1993) provides the criteria for the issuance of a sale and
consumption license. 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.
The applicant does not meet all of these requirements. There is no evidence that McMillian conducts
a business engaged primarily and substantially in the preparation of meals.
5. ABC Regulation 7-19 provides certain requirements for the preparation and service
of food for establishments applying for sale and consumption licenses. It requires that:
A. Any business establishment that applies for or holds a sale and consumption
license pursuant to § 61-5-20(4) of the Code and is not engaged in the furnishing of
lodging, must:
1. Be equipped with a kitchen that is utilized for the cooking, preparation,
and
serving
of
meals;
and
2. Have readily available to its guests and patrons either "menus" with
the listings of the various meals offered for service or a listing of available
meals and foods, posted in a conspicuous place readily discernible by the
guest or patrons; and
3. Prepare for service to customers hot meals at least once each day the business establishment chooses to be open.
4. If such establishment advertises, a substantial portion of its advertising must be devoted to its good services.
B. The following definitions shall be used in conjunction with § 61-5-20(4) of the
Code and this Regulations:
1. "Meal" means an assortment of various prepared foods which shall be available to guests on the licensed premises during the normal
"mealtimes" which occur when the licensed business establishment is open
to the public. Sandwiches, boiled eggs, sausages and other snacks
prepared off the licensed premises but sold thereon, shall not constitute a
meal.
2. "Kitchen" means a separate and distinct area of the business establishment that is used solely for the preparation, serving and disposal
of solid foods that make up meals. Such area must be adequately equipped
for the cooking and serving of solid foods, and the storage of same.
3. "Primarily" means that the serving of meals by a business establishment
constitutes a
regular
and
substantial
source
of
business
to
the
licensed
establishment
and
that
meals
shall
be
served
upon
the
demand
of
guests
and
patrons
during
the
normal
"mealtimes"
which
occur
when
the
licensed
business
establishment is
open to
the
public
and
that
an
adequate
supply
of
food
is
present
on
the
licensed
premises to
meet
such
demand.
The evidence reveals that The Pub does not have a full kitchen that meets the requirements of the
regulation and there is no evidence that there are menus.
6. The applicant meets the statutory requirements for the issuance of a beer and wine
permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, William McMillian is entitled to
the issuance of an on-premises beer and wine permit for The Pub located on Frazier Street in
Florence, South Carolina. The Pub does not meet the requirements for a business engaged primarily
and substantially in food preparation and service. McMillian must present proof to the Department
that the location meets the criteria before a restaurant minibottle license is issued. It is therefore,
ORDERED, that the Department of Revenue and Taxation shall issue a beer and wine permit
to William McMillian. The application for a restaurant minibottle license is denied until McMillian
is able to establish to the Department that the location meets the requirements of Section 61-5-50
and ABC Regulation 7-19.
AND IT IS SO ORDERED.
__________________________
ALISON RENEE LEE
Administrative Law Judge
January _____, 1995
Columbia, South Carolina. |
