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 Petitioner, Clifford R. Dayton, seeks an on-premise beer and wine permit
and a mini-bottle sale and consumption license for the River Bend Tavern. A hearing was held on
July 11, 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 and the Protestant,
I make the following Findings of Fact by a preponderance of evidence:
1. The court has subject matter jurisdiction of this case.
2. The Petitioner seeks an on-premise beer and wine permit and a mini-bottle sale and consumption license for River Bend Tavern at 18155
Hwy. 176, Campobello.
3. Notice of the time, date, place and subject matter of the hearing was
given to the Petitioner, the Protestant, and South Carolina Department
of Revenue.
4. The qualifications set forth in S. C. Code Ann. §61-5-50 and §61-9-320 (Supp. 1994) concerning the residency and age of the Petitioner
are properly established. Furthermore, the Petitioner 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 Petitioner's proposed location is not within 500 feet of any
church, school or playground. There are no homes within one mile of
the location. In fact the location is surrounded by woods.
6. Donald Belue has held a beer and wine permit and a sale and
consumption license since approximately 1988 at Petitioner's proposed
location. Mr. Belue decided to sell the business after his brother, who
was the manager, broke his back. Mr. Belue testified that during his
ownership there were no problems with the permit or license at this
location.
7. The Applicant is conducting a bonified business that meets the
requirements of South Carolina Code Ann. §§61-5-20 (4) and 50
(Supp. 1994) 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. S.C. Code Ann. § 1-23-600 (Supp. 1994) 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. 1994) 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. S.C. Code Ann. §§ 6-9-320 and 61-5-50 (Supp. 1994) 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 S.C. Code Ann. § 61-5-50 (Supp. 1994) 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. In considering the suitability of a location, it is relevant to consider the
previous history of the location and to determine whether the
testimony in opposition to the granting of a permit 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).
8. Section 61-3-425 S.C. Code Ann. (Supp. 1994) 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 does not owe state or
federal taxes, penalties or interest.
9. S.C. Code § 61-9-340 (Supp. 1994) 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.
10. 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 Clifford R. Dayton, for an on-premise beer and wine
permit and a mini-bottle sale and consumption license at 18155 Hwy. 176, Campobello, South
Carolina be granted upon payment of the required fees and posting of the bond by the Applicant.
_______________________________________
Ralph King Anderson, III
Administrative Law Judge
July 19, 1995
Columbia, South Carolina |