ORDERS:
ORDER AND DECISION
1233 N. Limestone Street, Gaffney, South Carolina, by Teresa Rose, d/b/a Brandi's Restaurant,
filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as
"DOR"). A hearing was held in Gaffney at the Cherokee County Courthouse, on February 9,
1996. Because the proposed location is currently licensed with restrictions imposed by an
administrative law judge, and Petitioner failed to establish any material change with respect to the
location has occurred since those restrictions were imposed, the Court is bound by collateral
estoppel from removing the existing restrictions. Accordingly, the permit and license sought are
granted with the same conditions imposed in the previous Order.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an on-premises beer and wine permit and a business sale and
consumption license for a location at 1233 N. Limestone Street, Gaffney, South Carolina, having
filed an application with DOR on November 6, 1995.
(2) Petitioner operates and has operated the proposed location as a country-style family
restaurant since January, 1995, and has served beer, wine, and liquor at the location since April,
1995.
(3) Petitioner currently holds an on-premises beer and wine permit and a business sale and
consumption license for a location at 1233 N. Limestone Street, Gaffney, South Carolina, having
been granted the license and permit, subject to certain restrictions, after a contested case hearing
on March 15, 1995, before the Honorable John D. Geathers, Administrative Law Judge, by his
Order and Decision dated March 29, 1995.
(4) Administrative notice is taken of Judge Geathers' Order of March 29, 1995, and it is
incorporated herein by reference in its entirety.
(5) Petitioner seeks a new license and permit, rather than renewal of the current ones, in
order to have the following restriction, imposed by Judge Geathers' Order, removed:
The applicant's current hours of operation, 6:00 a.m. to 9:00 p.m.,
shall not be extended beyond 10:00 p.m. That is, the applicant
shall not open for business beyond 10:00 p.m.
(6) Because of the restriction requiring the restaurant to close by 10:00 p.m., the
restaurant has not had enough evening customers to warrant continued service of a supper meal.
It currently serves breakfast and lunch and closes at 2:00 p.m.
(7) The proposed location is located in a mixed residential and commercial area.
(8) Several residents, mostly senior citizens, live in close proximity to the proposed
location.
(9) The area immediately surrounding the proposed location has not changed in nature
since issuance of the current license and permit in March, 1995.
(10) The only physical change to the proposed location since issuance of the current
license and permit is the installation of sound-deadening insulation in the windows, with the
windows blacked out.
(11) The Gaffney Police Department received four 911 telephone calls complaining of
noise from the proposed location on the following dates and times: May 29, 1995, at 10:03 p.m.;
July 27, 1995, at 9:56 p.m.; July 28, 1995, at 9:26 p.m.; August 3, 1995, at 8:45 p.m. None of
the complaints resulted in an arrest or issuance of a citation.
(12) In the previous hearing before Judge Geathers on March 15, 1995, Lt. Richard
Turner, on behalf of Chief Jimmy Scates of the Gaffney Police Department, and Douglas E.
Lipsey, a neighbor of the proposed location, appeared and testified in opposition to the issuance
of a permit and license.
(13) In the present case, recently appointed Gaffney Police Chief John O'Donald and
Douglas Lipsey appeared and testified in opposition to removal of the 10:00 p.m. closure
restriction.
(14) Notice of the time, date, place, and subject matter of the hearing was given to the
petitioner, protestants, and DOR.
(15) DOR did not appear at the hearing, having been excused from appearing upon
motion granted, on the basis that DOR did not seek imposition of restrictions.
(16) The applicant is over twenty-one years of age, is a resident of the State of South
Carolina, and has maintained her principal residence in South Carolina for more than thirty days.
(17) The applicant has never had a permit or license revoked.
(18) Petitioner is of good moral character and is of suitable fitness and temperament to
hold a beer and wine permit and minibottle license.
(19) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three consecutive weeks and was posted at the proposed location for
fifteen days.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) The South Carolina Administrative Law Judge Division is empowered to hear this
case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title I of the 1976
Code, as amended.
(2) S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met before
issuance of a beer and wine permit.
(3) S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1995) set forth the requirements for
a minibottle license.
(4) As the trier of fact, an administrative law judge is authorized to determine the fitness
or suitability of the proposed business location of an applicant for a permit to sell beer and wine
using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
(5) Judge Geathers, in his Order of March 29, 1995, found and concluded the proposed
location to be suitable and proper, but only if the operation of the restaurant were subject to
certain restrictions, which were imposed in his Order. Petitioner did not appeal that decision.
(6) When a proposed location has previously been found to be unsuitable, an applicant
must affirmatively show that some material change with respect to the location has occurred since
the previous denial. 23 S.C. Code Ann. Regs. 7-3, 7-19.1, 7-30, and 7-96 (1976 & Supp. 1995).
The same standard should be applied to license and permits which have been previously granted
with restrictions when an applicant seeks a new license free of those restrictions.
(7) Petitioner offered no evidence to establish that any material change has occurred in
relation to the proposed location since the issuance of the current license and permit with
restrictions pursuant to Judge Geathers' Order of March 29, 1995.
(8) Petitioner had a full and fair opportunity to litigate whether a license and permit
should be granted, and if so, with what restrictions, if any, at the March 15, 1995 hearing before
Judge Geathers. She chose not to appeal from Judge Geathers' decision to grant the license and
permit with restrictions.
(9) Under the doctrine of collateral estoppel, when an issue of fact or law is actually
litigated and determined by a valid and final decision of an administrative tribunal, and that
determination is essential to the decision, the determination is conclusive in a subsequent matter
between the parties, whether on the same or different claim. Carman v. S.C. ABC Commission,
___ S.C. ___, 451 S.E.2d 383 (1994); St. Philip's Episcopal Church v. S.C. ABC Commission,
285 S.C. 335, 329 S.E.2d 454 (Ct. App. 1985).
(10) Petitioner is collaterally estopped from relitigating the issue of the suitability of the
proposed location to operate her restaurant and sell beer, wine, and liquor beyond 10:00 p.m.
The issue was necessarily and specifically determined in the March 29, 1995 Order of Judge
Geathers.
ORDER
IT IS THEREFORE ORDERED that the license and permit sought are granted, subject
to the following restrictions contained in the March 29, 1995 Order of Administrative Law Judge
John D. Geathers in the case of Teresa T. Rose, d/b/a Brandi's Restaurant, v. S.C. Department of
Revenue and Taxation and Chief Jimmy Scates, Docket No. 95-ALJ-17-0038-CC:
1. The applicant shall not allow excessive noise to emanate from
the proposed location. For purposes of this restriction, three
(3) or more convictions for the violation of the county noise
ordinance shall be considered prima facie evidence of a violation
of this provision.
2. The applicant shall provide adequate parking for patrons.
3. The applicant shall prohibit patrons from parking on the
shoulder of the street surrounding the proposed location
and strictly enforce the prohibition.
4. The applicant shall prevent patrons of the restaurant from
loitering outside.
5. The applicant's current hours of operation, 6:00 a.m. to
9:00 p.m., shall not be extended beyond 10:00 p.m. That is,
the applicant shall not open for business beyond 10:00 p.m.
AND IT IS SO ORDERED.
_______________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
February 23, 1996
Columbia, South Carolina |
