South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Ronald I. Paul, Midnight, Inc., d/b/a Midnight Lounge vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Ronald I. Paul, Midnight, Inc., d/b/a Midnight Lounge

Respondents:
South Carolina Department of Revenue, Doris W. Hildebrand, Carol Bongaarts, John Keefer, and Bruce Schult
 
DOCKET NUMBER:
95-ALJ-17-0532-CC

APPEARANCES:
For the Petitioner: James H. Harrison, Esquire

For the Department: Nicholas P. Sipe, Esquire

For the Other Respondents: Pro Se
 

ORDERS:

DECISION AND ORDER

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. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994) for a contested case hearing. The Petitioner, Ronald I. Paul, seeks an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for the Midnight Lounge at 2305 Taylor Street, Columbia, South Carolina. A hearing was held on September 27, 1995, in the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina. The South Carolina Department of Revenue and Taxation ("Department") moved that this case be dismissed because the Respondent relinquished his right to apply for a permit or license at this location in a previous proceeding. Both parties consented to a continuance pending this Court's determination of that Motion to Dismiss.

The issue in this case is whether the Respondent's permanent surrender of his on-premise beer and wine permit for this location on March 13, 1995 precludes him from attaining the above permit and license.





FINDINGS OF FACT


After considering the arguments and reviewing the legal briefs submitted by the parties, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, Parties and South Carolina Department of Revenue and Taxation.

2. On March 9, 1995, the Department sought a summary suspension of the Petitioner's beer and wine permit, held for the Midnight Lounge at 2305 Taylor Street, Columbia, South Carolina. The Department alleged that the Petitioner's location was a public hazard because the Petitioner had permitted numerous violent incidents at his location. The temporary suspension was sought pending a final determination by the Administrative Law Judge Division as to whether the Petitioner's beer and wine permit should be revoked.

3. The Department and Petitioner, prior to a hearing in that matter, entered into a Consent Agreement that the Petitioner would "voluntarily and permanently" surrender his beer and wine permit on March 13, 1995. The Honorable Marvin H. Kittrell issued an Order pursuant to that Agreement that the Petitioner surrender his beer and wine permit for the location on March 13, 1995. See Docket No. 95-ALJ-17-0125-CC.

4. The Petitioner now seeks an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization for the Midnight Lounge at the same location on 2305 Taylor Street, Columbia, South Carolina.

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. 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. Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

4. In Carman v. S.C. ABC Commission, S.C. , 451 S.E.2d 383 (1994), the South Carolina Supreme Court held that "[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have an adequate opportunity to litigate" the rule of collateral estoppel applies. The estoppel of a judgement applies to facts and issues that are not expressly litigated if they are "necessary and inevitable inferences in the sense that the judgement could not have been rendered as it was without deciding such points." Carman, supra. [quoting, Dunlap & Dunlap v. Zimmerman, 188 S.C. 322, 199 S.E. 296 (1938)].

5. "Permanent" is defined as: "(1) Lasting or remaining without essential change. (2) Not expected to change in status, condition or place." The American Heritage College Dictionary 1018 (3rd ed. 1993). Further, Black's Law Dictionary defines "permanent" as: "[c]ontinuing or enduring in the same state, status, place or the like, without fundamental or marked change, not subject to fluctuation, or a alteration . . ." Black's Law Dictionary 1139 (6th ed. 1990).

6. S.C. Code Ann. § 61-1-95 (Supp. 1994) provides "when a license or permit is suspended or revoked, no partner or person with a financial interest of any kind in the business or premises, nor a person within the third degree of kinship to the person to whom a license or permit has been issued, may be issued a license or permit for the premises concerned." The Petitioner's license was not suspended or revoked pursuant to Section 61-1-95. However, that Section establishes that the revocation of a permit applies not just to the specific permit itself, but to the location and the persons associated or kin to the individual whose permit or license was revoked. The Petitioner, as president of Midnight Lounge, certainly has a financial interest in the location at 2305 Taylor Street.

7. The Petitioner's application for a beer and wine permit and a nonprofit club minibottle license at 2305 Taylor Street is barred by his previous permanent surrender of his beer and wine permit at this location.

ORDER


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

ORDERED AND ADJUDGED that this application of Ronald I. Paul, for an on-premise beer and wine permit and a club sale and consumption license as a nonprofit organization, be denied.

AND IT IS SO ORDERED.



______________________________________

Judge Ralph King Anderson, III

Administrative Law Judge

January 4, 1996

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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