ORDERS:
ORDER AND DECISION
STATEMENT OF 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 Robert Kelley and Billy R. Littleton, hereinafter
referred to as the "applicant", for an on-premise beer and wine permit and a sale and consumption
("mini-bottle") license at 105 Niki Lyn Lane, Salem, Pickens County,South Carolina ("location").
A hearing was held on February 27, 1995, at Courtroom #1, Anderson County Courthouse,
Anderson, South Carolina. Notice of the date, time, place and nature of the hearing was timely given
to all parties and the sole protestant, James Singleton. 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 James Singleton. Although timely notice was given, Mr.
Singleton was not present at the hearing. 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 if all statutory requirements were met.
The application request by the petitioner is granted.
EXHIBITS
None.
SUMMARY OF EVIDENCE
A hearing was held on February 27, 1995, at Courtroom #1, Anderson County Courthouse,
Anderson, South Carolina. At the hearing were the Petitioners, Robert Kelley and Billy Littleton with
their attorney, Bradley A. Norton. No one on behalf of the protestants appeared at the hearing.
Robert Kelley testified on behalf of the Applicants. Robert Kelley testified that he and Mr.
Littleton were in a partnership to run an establishment known as Kelley's. Kelley's has been in
operation for approximately fifteen (15) months with an on-premise beer and wine permit. The
premises are open for business from approximately two-o'clock (2:00 p.m.) p.m. until approximately
twelve-o'clock (12:00 p.m.) on weekdays, two-o'clock (2:00 p.m.) p.m. until two-o'clock (2:00 a.m.)
a.m. on Fridays and two-o'clock (2:00 p.m.) p.m. until twelve-o'clock (12:00 p.m.) p.m. on Saturdays.
The Applicants serve pizza, sandwiches, and snack foods on the premises. There are a couple of
video machines and pool tables on the premises and occasionally a live band will play on the premises.
The closest house to the premises is across the street and during the fifteen (15) months that Kelley's
has been in operation, there have been no complaints about the premises.
FINDINGS OF FACT
By preponderance of the evidence, I make the following findings:
1. The applicants are seeking an on-premise beer and wine permit and a sale and
consumption ("mini-bottle") license for an establishment known as Kelley's located at 105 Niki Lane,
Salem, Oconee County, South Carolina.
2. The applicants are twenty-one (21) years of age.
3. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Journal/Tribune, a newspaper of general circulation in the local area where the applicant
proposes to engage in business.
4. The applicants have been legal residents of South Carolina for over thirty (30) days
and maintained their principal place of abode in South Carolina for over thirty (30) days.
5. The applicants are of good moral character.
6. The applicants intend to own, operate and manage Kelley's.
7. Presently, there is a tavern/restaurant operational at the location with an on-premise
beer and wine permit.
8. The applicants have never had a beer and wine permit or mini-bottle license revoked.
9. The applicants intend to operate a tavern/restaurant at the location at 105 Niki Lane
in Salem, South Carolina between the hours of 2:00 p.m. and 2:00 a.m., Monday through Saturday.
10. There are no schools, playgrounds or churches within close proximity to the proposed
location.
11. The property location is not within any municipal boundaries, located in a mixed
commercial and residential area.
12. No protestants were at the hearing.
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 a beer and wine permit which 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 state 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. Section 61-5-50 (Supp. 1993) sets forth the requirements for the
issuance of a sale and consumption ("mini-bottle") license.
5. 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.
6. 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). 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). 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.
7. 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.
8. It is concluded that the applicants have met their burden of proof in showing that they
meet 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 permit and license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the applications of Robert Kelley and Billy R. Littleton, d/b/a
Kelley's for an on-premise beer and wine permit and a sale and consumption (mini-bottle)
license for the premises located at 105 Niki Lyn Lane, Salem, Pickens County, South
Carolina be granted and,
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 16, 1995 |
