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.
(Rev. 1986 and Supp. 1993) for a hearing pursuant to the applications of Michael D. Pike,
d/b/a Pike's Place, ("applicant") for an on-premise beer and wine permit (AI 100459 ) and
on-premise sale and consumption license (AI 100460) at 13241 Asheville Highway, Inman,
Spartanburg County, South Carolina ("location").
A hearing was held on February 24, 1995, at the Spartanburg County Courthouse,
Spartanburg, South Carolina. Notice of the time, date, place and nature of the hearing was
timely given to all parties and the one protestant, Spartanburg County Sheriff's Office. The
sole issue considered was the moral character of the applicant.
The applications requested by the petitioner are granted.
EXHIBITS
Without objection, copies of the relevant portions of the department's file were made
a part of the record as well as those four (4) exhibits attached to the Respondent's Pre-Hearing Statement.
FINDINGS OF FACT
By a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. The applicant is seeking an on-premise beer and wine permit and a sale and
consumption ("mini-bottle") license for a restaurant/lounge located at 13241 Asheville
Highway, Inman, Spartanburg County, South Carolina.
3. The applicant is over twenty-one (21) years of age and has not had an
application revoked within the two (2) years preceding the date of the filing of this
application.
4. Notice of the application has appeared at least once a week for three (3)
consecutive weeks in The Herald-Journal, a newspaper of general circulation in the local
area where the applicant proposes to engage in business.
5. Notice of the application has been given by displaying a sign for a minimum
of fifteen (15) days at the site of the proposed location.
6. The applicant has been a legal resident of South Carolina for over thirty days
and maintained his principal place of abode in South Carolina for over thirty days.
7. The applicant has never had a beer and wine permit or mini-bottle license
revoked.
8. There are no schools, playgrounds or churches within close proximity to the
proposed location.
9. No protestants were at the hearing.
10. The applicant is of good moral character.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the
following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1993) 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. 1993) grants to the Administrative Law
Judge Division the powers, duties and responsibilities as a hearing officer in protested and
contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. Section 61-9-320 (Supp. 1993) sets forth the requirements for
the issuance of a beer and wine permit which provides in part:
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 application.
(3) The wholesale applicant is a legal resident of the United States and has
been 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 or has
been licensed previously under the laws of this State.
(4) The applicant, within two years before the date of application, 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.
(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.
(8) Notice has been given by displaying the required sign for fifteen
days at the site of the proposed business.
The applicant meets all the statutory requirements set forth above and has made an
adequate showing on each of the above state grounds for issuance of the permit.
4. S.C. Code Ann. Section 61-5-50 (Supp. 1993) sets forth the requirements for
the issuance of a sale and consumption ("mini-bottle") license which provides as follows:
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 § 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, § 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 give notice to
interested citizens of the county, municipality, 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 and wine permit and alcoholic 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.
5. The Department is authorized to issue retail liquor licenses under the
provisions of S.C. Code Ann. § 61-3-410(3) (Supp. 1993).
6. S.C. Code Ann. § 61-9-340 (Supp. 1993) states that upon a determination that
an applicant meets the criteria set forth in S.C. Code Ann. § 61-9-320 (Supp. 1993) and has
not misstated or concealed a fact in the application, the S.C. Department of Revenue and
Taxation must issue the permit after payment of the prescribed fee.
7. S.C. Code Ann. § 61-3-420 (Supp. ) defines persons ineligible for the granting
of a license.
8. S.C. Code Ann. § 61-3-425 (Supp. 1993) prohibits the issuance of a license
under Title 61 until the applicant presents to the Department a signed statement both from
the Department and the Internal Revenue Service showing the applicant doesn't owe the state
or federal government delinquent taxes, penalties or interest.
9. The Department objects to the issuance of the permit and license, arguing that
the three (3) driving under suspension violations in 1986 and 1987 and the mandatory
violation of the Habitual Offender Act (1987) constitute a failure on the part of the applicant
to meet the "good moral character" requirement. However, this argument and objection is
without merit. The violations are stale and too remote in time, having occurred many years
ago. Further, the applicant has married, has a child and has developed a good reputation in
the community where he lives. Further, the violations do not rise to those which constitute
moral turpitude convictions and can't be used to attack his credibility. Thus, although they
are exhibits deemed admitted under Temporary Operating Procedure 26(A), they are given
no evidentiary weight in this decision making process.
10. It is concluded that the applicant meets all of the statutory requirements for
holding a retail beer and wine permit and a sale and consumption ("mini-bottle") license and
accordingly, I conclude that the proposed location is a proper one for granting the beer and
wine permit and the sale and consumption ("mini-bottle") license.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby
ORDERED that the application of Michael D. Pike for an on-premise beer and wine
permit and an on-premise sale and consumption license at 13241 Asheville Highway, Inman,
Spartanburg County, South Carolina is approved subject to applicant complying with the
provisions of S.C. Code Ann. § 61-3-425 and the payment of required fees.
AND IT IS SO ORDERED.
Marvin F. Kittrell
Chief Administrative Law Judge
Columbia, South Carolina
March 9, 1995 |
