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. (1986 and Supp. 1993) for a
contested case hearing. The Applicant, Don Smith, seeks an on-premise beer and wine permit and
a mini-bottle sale and consumption license for Shakers Steak House. A hearing was held on April
26, 1995, at the office of Administrative Law Judge Division, 1205 Pendleton Street, Columbia,
South Carolina.
The Permit requested by the Applicant is approved.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon
their credibility, taking into consideration the burden of persuasion by the Parties or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. The court has subject matter jurisdiction of this case.
2. The Applicant seeks an on-premise beer and wine permit and a mini-bottle sale and consumption license for Shakers Steak House at 28
Coligny Plaza, Hilton Head.
3. Notice of the time, date, place and subject matter of the hearing was
given to the Applicant, Protestants, and South Carolina Department
of Revenue.
4. The qualifications set forth in S. C. Code Ann. §61-5-50 and §61-9-320 (Supp. 1993) concerning the residency and age of the Applicant
are properly established. Furthermore, the Applicant has not had a
permit or license revoked within the last two years and notice of the
application was lawfully posted both at the location and in a
newspaper of general circulation.
5. The Applicant's proposed location is not within 500 feet of any
church, school or playground.
6. At the beginning of this hearing the Applicant and the Protestant
stipulated to the following:
a. The Applicant is a legal resident of the United States
and has been a legal resident and maintained his
principal place of abode in South Carolina for at least
thirty (30) days.
b. The Applicant has not had a permit or license revoked
within two years before the date of the application.
c. The Applicant is 21 years of age or older.
d. Notice of the application was lawfully posted at the
location and published in a newspaper of general
circulation for the required statutory period.
e. The proposed location is suitable for an on-premise
beer and wine permit and a mini-bottle sale and
consumption license.
f. The Applicant is of sufficient moral character to
receive an on-premise beer and wine permit and a
mini-bottle sale and consumption license.
7. The Applicant is conducting a bonified business which meets the
requirements of South Carolina Code Ann. §§61-5-20 (4) and 50
(Supp. 1993) and 23 S. C. Code Ann. Regs. 7-19 (1976).
8. The Applicant and the corporation possess sufficient moral character
and a reputation in the community to receive both a beer and wine
permit and a mini-bottle sale and consumption license.
CONCLUSIONS OF LAW
Based upon the above findings of fact, I conclude as a matter of law the following:
1. Section 1-23-600 S.C. Code Ann. (Supp. 1993) grants jurisdiction to
the Administrative Law Judge Division to hear contested cases under
the Administrative Procedures Act.
2. Section 61-1-55 S.C. Code Ann. (Supp. 1993) grants to the
Administrative Law Judge Division the powers, duties and
responsibilities as hearing officer in protested and contested matters
governing alcoholic beverages, beer and wine.
3. Section 61-9-320 S.C. Code Ann. (Supp. 1993) and §61-5-50 (Supp.
1993) sets forth the requirements for the issuance of an on-premise
beer and wine permit and a sale and consumption license.
4. In addition to the requirements set forth above, a license for the sale
and consumption of alcoholic beverages must not be granted unless
the provisions of §61-5-50 S.C. Code Ann. (Supp. 1993) are met.
That section requires that a mini-bottle license be granted only to a
bonified business engaged either in the business of primarily and
substantially preparing and serving meals or furnishing lodging. The
principals and applicant must not only be of good moral character,
but furthermore, the business must also have a reputation for peace
and good order.
5. As trier of fact, an Administrative Law Judge is authorized to
determine the fitness or suitability of the proposed location of an
applicant for a permit or license to sell alcohol, beer or wine using
broad but not unbridled discretion. Byers v. S. C. ABC Commission,
316 S.E. 2d 705 (S.C. App. 1984).
6. The determination of suitability of a location is not necessarily a
function 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 located. Kearney v. Allen,
287 S.C. 324, 338 S.E. 2d 335 (1985).
7. Section 61-3-425 S.C. Code Ann. (Supp. 1993) requires an applicant
seeking a license to present to the Department of Revenue and
Taxation a signed statement from both the Department and the
Internal Revenue Service showing the applicant doesn't owe state or
federal taxes, penalties or interest.
8. Section 61-9-340 S.C. Code (Supp. 1993) provides that upon
determination that the applicant meets the criteria for the issuance of
a permit or license, and has not misstated or concealed a fact in the
application, the South Carolina Department of Revenue and Taxation
must issue the permit after payment of the prescribed fee.
9. I conclude that the Applicant meets all the statutory requirements for
holding a beer and wine permit and a mini-bottle sale and consumption
license.
ORDER
Based upon the Findings of Fact and Conclusions of Law, It is Hereby:
ORDERED, that the application of Don Smith, Kemac, for an on-premise beer and wine
permit and a mini-bottle sale and consumption license at 28 Coligny Plaza be granted upon payment
of the required fees and posting of the bond by the Applicant.
_______________________________________
Ralph King Anderson, III
Administrative Law Judge
May 2, 1995
Columbia, South Carolina |
