South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Michael H. Mims, d/b/a Party Animal's Pink Cadillac vs. SCDOR, et al

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Michael H. Mims, d/b/a Party Animal's Pink Cadillac

Respondents:
South Carolina Department of Revenue, Kenneth R. Ford and Kelly Gowen
 
DOCKET NUMBER:
95-ALJ-17-0669-CC

APPEARANCES:
For the Petitioner: Pro Se

For the Respondent/SC Department of Revenue and Taxation:
Arlene D. Hand, Esquire

For the Respondents/Ford and Gowen: Pro Se
 

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. 1995) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1995) for a contested case hearing. The Petitioner, Michael H. Mims, seeks an on-premise beer and wine permit and a sale and consumption license for Party Animal's Pink Cadillac. A hearing was held on December 12, 1995, at the Administrative Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.

The permit requested by the Petitioner is approved with restrictions.



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 or Protestants, I make the following Findings of Fact by a preponderance of evidence:

1. The Petitioner seeks an on-premise beer and wine permit and a sale and consumption license for the Party Animal's Pink Cadillac at 1484 Highway 52, Moncks Corner, South Carolina.



2. Notice of the time, date, place and subject matter of the hearing was given to the Respondent, the Protestants, and the South Carolina Department of Revenue.

3. The qualifications set forth in S. C. Code Ann. § 61-9-320 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.

4. The Petitioner and Robert Jeffcoat intend to operate this business. Both these individuals are former law enforcement officers. The Petitioner is of sufficient moral character to receive a permit and a license.

5. The Protestants object to the issuance of a permit to the Petitioner for the following reasons:

a) The proposed location is unsuitable because of its proximity to a church, playground and residences in violation of S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

b) The proposed location is within 500 feet of a playground as prohibited by S.C. Code Ann. § 61-3-440 (Supp. 1995).

c) The proposed location is not suitable under S.C. Code Ann. § 61-3-730 (Supp. 1995).

6. The Protestants object to the proximity of the Berkeley Church of Christ, the First Christian Church, the First Christian Church's ball field and the local residences to the proposed location. No one from the Berkeley Church of Christ or the nearby residences appeared to protest the issuance of a permit or license in this case. The Protestants, who appeared, represented the First Christian Church ("Church").



7. Following the route of ordinary vehicular travel, the distance from the proposed location's entrance to the entrance of the Church grounds is 875 feet. In preparing a map of the area for this case, SLED agent Wallace Scott also noted the distance by which a pedestrian might travel along the public thoroughfare from the proposed location to the Church. The distance from the building currently located on the Petitioner's property to the entrance of the Church grounds is 550 feet. However, the Petitioner intends to remove the current structure and build a new structure on the property, approximately 50 feet further from the Church. The distance following the pedestrian route along the roadway would then be approximately 600 feet to the entrance of the Church grounds.

8. The playground referred to by the Protestants was recently an overgrown field. Shortly before the Petitioner filed his application, the Church cleared the field of debris and began using the field for recreational purposes. After the field was cleared, it has been used by the community in a limited nature. The Youth Minister of the Church testified that a youth football league and baseball team have used the field for practice. The field has no lighting for nighttime use.

9. Entrance to the field is gained by taking a path through a stand of trees located on the Church property. The distance from the proposed location following the public thoroughfare as a pedestrian might travel is more than 650 feet. However, the field is actually located directly adjacent to the property. The field is approximately 60 feet from the structure currently upon the Petitioner's property and approximately 100 feet from the proposed location.

10. The proposed location is on a four-lane highway in a rural area of Berkeley County. The Petitioner will have "sound proof" insulation in both the walls and ceiling to insure that the sound system does not emit excessive noise outside of the proposed location.

11. The proposed location is suitable for an on-premise beer and wine permit and a sale and consumption license only with the restrictions set forth below.

STIPULATION


The Petitioner stipulated at the hearing that he would abide by the following restrictions if granted an on-premise permit and a sale and consumption license:

1. The Petitioner will employ security officers to police the location to insure that no loitering occurs outside of the location.

2. An eight-foot wooden privacy fence will be constructed between the Church property and the proposed location.

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. 1995) 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. 1995) 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. 1995) set 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. 1995) is 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. 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. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

6. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a beer and wine permit and a mini-bottle sale and consumption license using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

7. The determination of suitability of 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).

8. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that Protestant objects to the issuance of a permit or license is not a sufficient reason by itself to deny the application. See, 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

9. S.C. Code Ann. § 61-9-340 (Supp. 1995) provides that upon determination that the Petitioner 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 or license after payment of the prescribed fee.

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

Any stipulation 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 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.

11. I conclude that the Petitioner meets all the statutory requirements for holding a beer and wine permit and a mini-bottle sale and consumption license at the proposed location. Accordingly, I conclude that the proposed location is a proper one for granting the above permit and license with the following restrictions in the form of written stipulations.

ORDER


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

ORDERED that the on-premise beer and wine permit and sale and consumption license application of Michael H. Mims for the Party Animal's Pink Cadillac be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue and Taxation to adhere to the stipulations set forth in the Findings of Fact and those set forth below:

1. The Petitioner shall construct a wooden privacy fence at least eight feet in height between the Church's field and the proposed location. As long as the Petitioner holds a beer and wine permit for this location the fence shall be maintained in good condition to accomplish both the limitation of movement between the properties and a good appearance.

2. The Petitioner shall contract with a bonded security company or an off-duty law enforcement officer, as permissible under the law, to have a security guard on duty when he serves beer, wine or alcohol. The security guard shall patrol the area surrounding the proposed location to insure that the Petitioner's patrons do not loiter or create a public disturbance in the parking lot.

3. The Petitioner shall not allow excessive noise to emanate from the proposed location. For the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision.

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-premise beer and wine permit and a sale and consumption license upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.



__________________________

Judge Ralph King Anderson, III

Administrative Law Judge

February 21,1996

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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