ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C.
Code Ann. § 61-2-90 (Supp. 2002), S.C. Code Ann. § 61-6-1825 (Supp. 2002) and S.C. Code Ann.
§§ 1-23-310 et seq. (1986 & Supp. 2002) for a contested case hearing. The Petitioner, Samuel
Gamble, d/b/a Casablanca II, seeks an on-premise restaurant sale and consumption license. The
applicant has been permitted for the sale of beer and wine at this location since September 2002. The
South Carolina Department of Revenue (Department) set forth in the Agency Transmittal to the
Division that it appeared that the applicant did not meet all statutory requirements for a sale and
consumption license because the applicant did not appear to be primarily and substantially engaged
in the preparation and serving of meals. Also, two Protestants appeared for a church situated in the
general vicinity of the location. A hearing was held on August 7, 2003, at the offices of the Division
in Columbia, South Carolina.
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 Petitioner, the Department
and the Protestants, I make the following Findings of Fact by a preponderance of evidence:
General Findings
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Department and the Protestants.
2.The Petitioner seeks an on-premise restaurant sale and consumption license for
Casablanca II at1807 Front Street, Georgetown, South Carolina. This location has been permitted
for the sale of beer and wine on-premises since September 2002, and is primarily operated as a bar
with one hot meal available for its patrons Thursdays through Saturdays. The Protestants consented
to the Petitioner receiving that permit as long as he did not sell alcohol. The Petitioner, however,
now seeks a sale and consumption licence for this location.
3.The qualifications set forth in S.C. Code Ann. §61-6-1820 (Supp. 2002) concerning
the residency and age of the owner of the location, Samuel Gamble, are properly established. Mr.
Gamble has also 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.
Furthermore, Mr. Gamble has not had any violations against his beer and wine permit since he has
been in operation at Casablanca II. Finally, the proposed location is not too close to any church,
school or playground.
4.Mr. Gamble has no criminal record and is of sufficient moral character to receive a
sale and consumption license. Furthermore, no evidence was presented that challenged the reputation
of the Petitioner’s business for peace and good order in the community or its principal’s moral
character. The location has had several law enforcement calls in the past year but no concrete
evidence was presented that these were due to the actions of the location’s patrons. In fact, one
patron was picked up on an outstanding warrant by an off-duty officer without incident while the
police received a call regarding a stolen bicycle and a hang-up. Finally, the location is primarily run
by Robert Keith who at this time does not have an ownership interest in Casablanca II. Mr. Keith
testified that he has no criminal record and I also find Mr. Keith to be of sufficient moral character.
Suitability of the Location
5.Casablanca II is situated on Front Street in a mixed commercial/residential area of the
City of Georgetown. To the left of the location is an abandoned warehouse. However, residences
are located to the left of that warehouse. To the right of the bar are more residences and just beyond
those residences is a catholic church, the Protestants in this contested case. Furthermore, a residential
community is located directly in front of the proposed location.
The location is open Monday through Saturday, beginning at 5:00 p.m. until the last patron
leaves, or at midnight on Saturdays. The location generally has about thirty (30) to forty-five (45)
patrons on a busy night. However, the location only has about fifteen (15) parking spaces and
overflow patrons must park on the nearby unlined streets.
6.The location also has a “Grade A” license from DHEC for the preparation of meals,
and, as set forth above, its patrons are currently offered a hot meal Thursdays through Saturdays.
The meals comprise of sandwiches and daily specials which include chicken, pork chops, crabs, beans,
rice and other similar meals. Additionally, the location has sufficient seating for its patrons to meet
the regulatory requirements. The establishment also has a kitchen with a commercial stove with a
vent, a two-compartment sink, a refrigerator, and storage space.
The Department argues that this location is not primarily and substantially engaged in the
business of preparing and serving meals. Mr. Keith set forth that he was waiting on the issuance of
this sale and consumption license to expand meal preparations. Nevertheless, the proposed location
current derives no more than 20% of its profits from the sale of food. Furthermore, the location
operates as a bar and not as a restaurant. Though the Petitioner contends he would expand the food
services if granted a sale and consumption license, he offered no satisfactory explanation as to why
he is currently operating as a bar rather than a restaurant with a beer and wine permit. Therefore, it
appears that the service of food would remain an incidental portion of the Petitioner’s business even
if he is granted a sale and consumption license.
7.The Protestants contend that the Petitioner's location is not suitable because of its
close proximity to St. Cyprian Catholic Church and its adjacent Outreach Center, along with the
residential nature of this area. They set forth that children play in this area and that traffic and parking
are problems. Charlie Ball of the Outreach Center (Friendship Place) specifically set forth that
Friendship Place serves a number of individuals with “drinking problems.” He was concerned about
the effects the sale of alcohol at the proposed location would have on those individuals he is trying
to help. Sister Kathleen Driscoll also cited her concerns for the safety of parishioners after the
adjournment of night services.
The arguments of the Protestants appear to be based on a sincere concern for this area of the
City of Georgetown. However, the Protestants’ evidence alone did not establish that this business
would change the integrity of the neighborhood or create an overall adverse impact on the community
if granted this sale and consumption license. Nevertheless, the residential nature of the area when
viewed in light of the current operation of the business as a bar rather than a restaurant validates that
granting a sale and consumption license to this location would change the integrity of the
neighborhood and create an overall adverse impact on the community.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (1986 & Supp. 2002) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the Division the responsibilities to determine
contested matters governing alcoholic beverages, beer and wine.
2. A license for the sale and consumption of alcoholic beverages must not be granted
unless the provisions of S.C. Code Ann. § 61-6-1820 (Supp. 2002) are met. That section requires
that a mini-bottle license be granted only to a bonafide business engaged in either the business of
primarily and substantially preparing and serving meals or furnishing lodging. S.C. Code Ann. § 61-6-20(2) (Supp. 2002) sets forth:
‘Bona fide engaged primarily and substantially in the preparation and serving of
meals’ means a business which has been issued a Class A restaurant license prior to
issuance of a license under Article 5 of this chapter, and in addition provides facilities
for seating not less than forty persons simultaneously at tables for the service of
meals.
The definition of “meal” is limited by the regulation as not including “[s]andwiches, boiled eggs,
sausages and other snacks prepared off the licensed premises but sold thereon . . . .” 23 S.C. Code
Ann. Regs. 7-19 (B)(1)(Supp. 2002). Additionally, “primarily” is defined in 23 S.C. Code Ann. Regs.
7-19(A) (1976) as:
[T]he serving of meals by a business establishment constitutes a regular and
substantial source of business to the licensed establishment and that meals shall be
served upon the demand of guests and patrons during the normal "mealtimes" which
occur when the licensed business establishment is open to the public and that an
adequate supply of food is present on the licensed premises to meet such demand.
Furthermore, Regulation 7-19(A) (1976) states, in part, that in order to meet the requirements of S.C.
Code Ann. § 61-6-20(2) (Supp. 2002) the location must “[p]repare for service to customers hot
meals at least once each day the business establishment chooses to be open.”
3.Although "proper location" is not statutorily defined, the Administrative Law Judge
Division is vested, as the trier of fact, with the authority to determine the fitness or suitability of a
particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 181 (1981). 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338
S.E. 2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider
any evidence that demonstrates the adverse effect the proposed location will have on the community.
Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E. 2d 476 (Ct. App. 1984). It is also relevant to
consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301 (1972);
Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E. 2d 801 (1973). Furthermore, in considering the
suitability of a location, it is relevant to consider whether the testimony in opposition to the granting
of a license is based on opinions, generalities and conclusions, or whether the case is supported by
facts. Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301, (1972); Taylor v. Lewis, et al., 261 S.C. 168,
198 S.E. 2d 801 (1973).
4. Permits and licenses issued by this State for the sale of liquor, beer and wine are not
property rights. They are, rather, privileges granted in the exercise of the State's police power to be
used and enjoyed only so long as the holder complies with the restrictions and conditions governing
them. The Administrative Law Judge Division, as the tribunal authorized to grant the issuance of a
permit, may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C.
Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
5.Based upon the evidence presented and the law set forth above, I find that the
Petitioner is not “primarily and substantially” engaged in preparing and serving meal. Furthermore,
the location as currently operated is not suitable for a sale and consumption license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the sale and consumption license application of Samuel Gamble d/b/a
Casablanca II, be denied.
AND IT IS SO ORDERED.
______________________________
Ralph King Anderson, III
Administrative Law Judge
August 14, 2003
Columbia, South Carolina |
