ORDERS:
ORDER AND DECISION
This matter comes before me on the application of Byron K. Murray for an on-premises beer
and wine permit and a restaurant minibottle license for Hogan's located at 323 Old Greenville
Highway in Clemson, South Carolina. Mrs. Jeanne Mono requested to be made a party to the action
as a protestor. After notice to the parties, a hearing was conducted on January 23, 1995. Mrs. Mono
failed to appear at the hearing. Based upon the testimony and evidence presented, I make the
following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. The applicant, Byron K. Murray, is a 34 year old, life long resident of the State of
South Carolina and of the United States.
2. He has never been convicted of a crime other than speeding violations and is a person
of good moral character.
3. Beer and wine licenses have been issued to him in the past, the first one was issued
in 1983. He currently holds an on-premise beer and wine permit for Lakeside Tavern located in
Pendleton, South Carolina. None of these permits have ever been suspended or revoked.
4. The proposed location is a restaurant is located at 323 Old Greenville Road in
Clemson. The hours of operation would be 10:00 a.m. to 2:00 a.m. Monday through Friday, 10:00
a.m. to 12:00 p.m. Saturday, and closed on Sunday. The restaurant can seat 60 people, has a grade
A rating from the health department, and has been remodeled.
5. A beer and wine permit and a minibottle license have been issued for this location in
the past. The location has been permitted for on-premise beer and wine for approximately 20 years
and for a minibottle license for approximately eight years.
6. The location is not near any churches, schools or playgrounds.
7. Notice of the application was posted at the location and published in The Messenger
as required by law.
8. An alcoholic liquors bond was provided as required.
9. The sole protestor is Jeanne Mono who protests the application on the basis of an
incident occurring in October 1994. Her husband John Mono was killed by Murray at the Lakeside
Tavern. Although she did not appear at the hearing, Mrs. Mono provided a detailed letter on the
basis for her protest. She feels that Murray was out of control and should not be allowed to operate
an establishment in which the public may be at risk. She believes her husband was killed in cold blood
by Murray.
10. Based upon the testimony of Murray, the police report on the incident, and letters
from the Sheriff and Solicitor, John Mono was attempting to rob Murray at gunpoint at the tavern
on October 4, 1994. Murray shot Mono five times and hit him several times with an unloaded
shotgun. The police report and investigation was submitted to the Solicitor for the Tenth Judicial
Circuit who reviewed the information. The Solicitor determined that Murray acted in self-defense
and did not prosecute him. Murray was never charged or indicted in connection with this matter.
11. After the hearing was concluded, a copy of the report from the autopsy conducted on
her husband was received from Mrs. Mono along with an explanation of why she did not attend the
hearing. These materials did not provided any new facts or information and were simply cumulative.
Therefore, they were not considered in making a determination in this matter.
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 Ann. § 61-1-55 (Supp. 1993).
2. S.C. Code Ann. § 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. In addition, proximity of a location to a church, school, playground, or residence is
a proper ground, by itself, on which the location may be found unsuitable for a permit to sell beer and
wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653 (S.C. 1991). The proposed
location is not near any of these facilities.
4. Section 61-5-50 provides the requirements for the issuance of a mini-bottle license to
a restaurant. It states:
The department may grant a license upon finding:
(1) The applicant is a bona fide nonprofit organization or the
applicant conducts a business bona fide engaged primarily and substantially
in the preparation and serving of meals or furnishing of lodging, as described
in Section 61-5-10.
(2) The applicant, if an individual, is of good moral character or, if
a corporation or association, has a reputation for peace and good order in
its community, and its principals are of good moral character.
(3) As to business establishments or locations established after
November 7, 1962, Section 61-3-440 has been complied with.
(4) Notice of application has appeared at least once a week for three
consecutive weeks in a newspaper most likely to given notice to interested
citizens of the county, municipality, or community in which the applicant
proposes to engage in business. The department shall determine which
newspaper 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.
(5) 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 license 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.
(6) The applicant is twenty-one years of age or older.
(7) The applicant is a legal resident of the United States and has
been a 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 application.
S. C. Code Ann. §61-5-50 (Supp. 1993).
5. The proposed location and business meets the statutory requirements for the issuance
of a beer and wine permit and a minibottle license.
6. The materials submitted Mrs. Mono were considered, as well as the information
provided by Mr. Murray. Based upon a preponderance of the evidence, Mr. Murray is a suitable
person to operate the proposed business. There is nothing to suggest that patrons are at risk. The
appropriate authorities reviewed the incident report and an investigation was conducted on the
shooting. Murray was not charged with any criminal offense nor was he indicted by a grand jury.
The events occurring on that evening do not evidence a pattern of behavior by Murray. Therefore,
he is a proper person to be issued a license.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, Byron K. Murray is a
suitable person and Hogan's is a suitable business and location for an on-premises beer and wine
permit and a restaurant minibottle license. It is therefore,
ORDERED, that the Department of Revenue and Taxation issue an on-premises beer and
wine permit and a restaurant minibottle license to Byron K. Murray d/b/a Hogan's located at 323 Old
Greenville Highway in Clemson upon the payment of the appropriate fees.
AND IT IS SO ORDERED.
__________________________
ALISON RENEE LEE
Administrative Law Judge
February _____, 1995
Columbia, South Carolina. |
