South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

Teresa T. Rose, d/b/a Brandi's Restaurant vs. SCDOR

South Carolina Department of Revenue

Teresa T. Rose, d/b/a Brandi's Restaurant

South Carolina Department of Revenue

Chief Jimmy Scates

Patrick E. Knie, Esquire

Attorney for the Petitioner

S.C. Department of Revenue and Taxation

Respondent (Not Present at the Hearing)

Chief Jimmy Scates

Gaffney Police Department


Douglas E. Lipsey

Protestant (Pro Se)



This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and S.C. Code Ann. § 1-23-310, et seq. (Supp. 1993) for a hearing pursuant to the applications of Teresa T. Rose for an on-premises beer and wine permit (AI 101490) and a sale and consumption license (AI 101491), hereinafter referred to as "minibottle license," for a restaurant located at 1233 N. Limestone Street, within the city of Gaffney, county of Cherokee, State of South Carolina.

After timely notice to the parties and protestant(s), a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina. Two protestants of record appeared, Chief Jimmy N. Scates and Douglas E. Lipsey. Chief Jimmy N. Scates moved to intervene as a party before the hearing and the motion was granted without objection by previous Order of the Division dated March 6, 1995. The issues considered at the hearing were: (1) the applicant's eligibility to hold a beer and wine permit and a minibottle license; (2) the suitability of the proposed business location; and, (3) the nature of the proposed business activity. The application for an on-premises beer and wine permit and the application for a minibottle license are hereby granted, with restrictions.


Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. The applicant seeks an on-premises beer and wine permit and a minibottle license for a restaurant located within the city of Gaffney at 1233 N. Limestone Street.

2. The South Carolina Department of Revenue and Taxation 's ("DOR") file, excluding letters of declarants not present and subject to cross examination at the hearing, was made a part of the record by reference with the consent of the petitioner and the protestant(s).

3. The proposed location is situated on N. Limestone Street, a two lane highway and main thoroughfare in the city of Gaffney.

4. The area surrounding the proposed location is predominantly residential in nature with the following commercial properties in the vicinity: Porter's Electric, Fast N' Fresh, Ingles, Fatz, a styling salon, and a photography studio.

5. Fast N' Fresh and Ingles are located in the immediate vicinity of the proposed location and are licensed to sell beer and wine.

6. A Class A restaurant license has been issued to the applicant.

7. The applicant is currently operating the proposed location as a restaurant which serves breakfast, lunch, and dinner, with hours of operation on Monday through Saturday from 6:00 a.m. to 9:00 p.m. Menus are available and the business is currently engaged primarily and substantially in the preparation and service of meals. The restaurant also has a game room in the rear of the building with various gaming tables, such as pool tables.

8. The proposed location has seating capacity for at least forty (40) people simultaneously at tables for the service of meals.

9. The nature and intended use of the proposed location conforms to that of the area.

10. The Gaffney Police Department received complaints from residents of excessive noise at the proposed location during a private New Year's Eve party in December, 1994. This occurrence was prior to the issuance of a business license to Brandi's Restaurant. In the two months Brandi's Restaurant has been open for business, the Gaffney Police Department has not received any complaints.

11. The proposed location is leased to the applicant by Dennis M. Rose, the applicant's spouse.

12. Lieutenant Richard Turner of the Gaffney Police Department, along with local residents, Edward S. Burgess and Douglas E. Lipsey, testified in opposition to the applications citing the character of the applicant's spouse, who was convicted of resisting arrest and noise violations in 1994, as justification for the denial of the applications. The protestant(s) also cited potential problems with noise, public safety concerns, and the proximity of residences as reasons for denial of the applications.

13. The applicant testified that her spouse would not be involved in the management or day-to-day operations of the business.

14. No concrete evidence was presented to show that the issuance of an on-premises beer and wine permit and a minibottle license, as requested by the applicant, would have an adverse impact on the community if the nature of the business activity, currently conducted therein, was maintained.

15. No church, school, or playground is within close proximity to the proposed location.

16. The applicant is of good moral character.

17. The applicant intends to operate and manage the restaurant.

18. The applicant testified that she would continue to operate Brandi's Restaurant at the proposed location regardless of whether a beer and wine permit and minibottle license were issued.

19. The applicant is at least 21 years of age, a U.S. citizen, a citizen of the State of South Carolina, and has maintained her principal residence in the state for at least thirty (30) days prior to the date of making application for an on-premises beer and wine permit and a minibottle license.

20. The applicant has never held a beer and wine permit or other license for the sale or consumption of alcoholic beverages.

21. Notice of both applications appeared in The Gaffney Ledger, a newspaper of general circulation in the area of the proposed location, for three (3) consecutive weeks and notice was posted at the proposed location for fifteen (15) days.


Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following: 1. S.C. Code Ann. § 61-1-55 (Supp. 1993) authorizes the South Carolina Administrative Law Judge Division to hear this case pursuant to Chapter 23 of Title I of the 1976 Code, as amended.

2. S.C. Code Ann. § 61-9-320 (Supp. 1993) establishes the criteria for the issuance of a beer and wine permit.

3. S.C. Code Ann. § 61-5-50 (Supp. 1993) establishes the criteria for the issuance of a minibottle license to a restaurant.

4. 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).

5. 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 , 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. There has been no evidentiary showing that the present location is unsuitable or that the issuance of an on-premises beer and wine permit and a minibottle license would affect the residents' safety, create traffic problems, or have an adverse impact on the community. The proposed location and the nature of the business activity are suitable and proper given the commercial/residential nature of the surrounding area.

7. The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

8. 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 operations 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.2d 335 (1985); Schudel v. S.C. ABC Commission, 276 S.C. 138, 276 S.E.2d 308 (1981).

9. The existence of the other businesses located in the vicinity of the proposed location does not currently disrupt the harmonious or compatible coexistence of businesses and residences. This is attributable to the nature of the activities conducted by the businesses and the hours of the day these activities are conducted.

10. "A liquor license or permit may properly be refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 (1981).

11. While Brandi's Restaurant is situated in an area that is primarily residential, it is, nonetheless, currently operating as a restaurant, and without sufficient evidence of an adverse impact on the community, the applications must not be denied if the statutory criteria are satisfied. The fact that residents protest the issuance of the permit and license is not a sufficient reason of itself to deny the applications. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

12. If the present manner of conducting the business is maintained, which is currently compatible with the surrounding community, the issuance of an on-premises beer and wine permit and a minibottle license would not be detrimental to the general welfare of the community.

13. The applicant satisfies all of the statutory requirements for holding an on-premises beer and wine permit and a minibottle license; and with the restrictions set forth below, the proposed location is proper for the issuance of an on-premises beer and wine permit and a minibottle license.

14. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

15. 23 S.C. Code Ann. Regs. 7-88 (1976), authorizing the imposition of restrictions to permits, provides:

Any stipulations and/or agreement which is voluntarily entered into by an

applicant in writing for a beer and wine permit between the applicant and the

South Carolina Alcoholic Beverage Control Commission, if accepted by the

Commission, will be incorporated into the basic requirements for the enjoyment

and privilege of obtaining and retaining the beer and wine permit and which

shall have the same effect as any and all laws and any and all other regulations

pertaining to the effective administration of beer and wine permits and permittees.

In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will

be a violation against the permit and shall constitute sufficient grounds to suspend

or revoke said beer and wine permit.


Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application of Teresa T. Rose for an on-premises beer and wine permit and a minibottle license for a location at 1233 N. Limestone Street, Gaffney, South Carolina, be granted upon the applicant signing a written agreement to be filed with DOR to adhere to the following restrictions:

1. The applicant shall not allow excessive noise to emanate from the proposed location. For purposes of this restriction, three (3) or more convictions for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision.

2. The applicant shall provide adequate parking for patrons.

3. The applicant shall prohibit patrons from parking on the shoulder of the street surrounding the proposed location and strictly enforce the prohibition.

4. The applicant shall prevent patrons of the restaurant from loitering outside.

5. The applicant's current hours of operation, 6:00 a.m. to 9:00 p.m., shall not be extended beyond 10:00 p.m. That is, the applicant shall not open for business beyond 10:00 p.m.

IT IS FURTHER ORDERED that a violation of any of the above restrictions is considered a violation against the permit and license and may result in a fine, suspension, or revocation.

IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue an on-premises beer and wine permit and a sale and consumption license upon the payment of the required fee(s) and cost(s) by the applicant.




Administrative Law Judge

March 29, 1995

Brown Bldg.






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