South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Clifton E. Guyton, d/b/a C & N Sports Bar vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Clifton E. Guyton, d/b/a C & N Sports Bar

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0015-CC

APPEARANCES:
For the Petitioners: J. Barry Abston, Esquire

For the Respondent/South Carolina Department of Revenue and Taxation: unrepresented

For the Respondent/City of Anderson: Officer Kevin Marcee
 

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 Clifton E. Guyton, d/b/a C & N Sports Bar, ("applicant") for an on-premise beer and wine permit (AI 101229) at 1299 W. Market Street, Anderson, Anderson County, South Carolina ("location").

A hearing was held on February 27, 1995, at the Anderson County Courthouse, Anderson, South Carolina. Notice of the time, date, place and nature of the hearing was timely given to all parties and the one protestant, the City of Anderson police department. 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 the City of Anderson police department, with David Riddleberger, Jack Sanders and John Barry appearing and testifying on its behalf. The City of Anderson wished to be made a party and its motion was granted. The South Carolina Department of Revenue and Taxation ("Department") was not represented at the hearing.

The application requested by the Petitioner is granted.





EXHIBITS

Without objection, certified 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 Anderson Independent-Mail

3. sketch of proposed location

4. investigative report by SLED

5. criminal history report from SLED

6. protest letter by the City of Anderson police department

Also, the Petitioner introduced into the record as evidence five (5) exhibits and the Respondent/City of Anderson, introduced into the record as evidence two (2) exhibits.





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 sportsbar at 1299 W. Market Street, Anderson, Anderson County, South Carolina.

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

4. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Anderson Independent-Mail, 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. Applicant is retired from Owen-Fiberglass Corporation and opened this sportsbar in October 1994. Applicant's location has pool tables and a juke box and he is renovating a room into a kitchen.

8. Applicant and the patrons are in the 45-65 age group and the music is of that era. Applicant was credible in his appearance and answering of questions.

9. The applicant is of good moral character.

10. The applicant has never had a beer and wine permit or mini-bottle license revoked.

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

12. The proposed location is within municipal boundaries, in a mixed commercial and residential area.

13. There was testimony by City of Anderson police officers and an Alcohol and Tobacco agent about the prior history of the location while it was operated as Mattison's Game Room and Lounge. Specifically, the officers testified to drug sales in the parking lot and inside the location, gun seizures, assaults and drug-related arrests. Since the location is on the City of Anderson/County of Anderson line and there is no cooperation between the respective law enforcement departments, jurisdictional problems exist in policing the area. However, there have been no complaints made to law enforcement from or about the location since its opening by the applicant.



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

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).

7. 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).

8. There has been no credible 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.

9. 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.

10. 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).

11. It is concluded that the applicant meets all of the statutory requirements for holding an on-premise 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 above Findings of Fact and Conclusions of Law, It is hereby:

ORDERED that the application of Clifton E. Guyton, d/b/a C & N Sportsbar for an on-premise beer and wine permit for the premises located at 1299 W. Market Street, Anderson, Anderson County, South Carolina is granted.

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 14, 1995


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