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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Teresa Rose, d/b/a Brandi's Restaurant vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Teresa Rose, d/b/a Brandi's Restaurant

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0768-R-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER AND DECISION

This matter comes before me upon remand by Order of Circuit Court Judge Donald W. Beatty, filed October 31, 1996, in the Court of Common Pleas of Cherokee County, Civil Action Number 96-CP-11-0082. Consistent with the Circuit Court Order, the record was re-examined and this Order is rendered. Based upon the relevant and probative evidence and applicable law, the license and permit applied for by Petitioner are granted, with restrictions.

STATEMENT OF THE CASE AND DISCUSSION

This matter was originally before me as Docket No. 95-ALJ-17-0768-CC, pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1995) upon an application for an on-premises beer and wine permit and business sale and consumption minibottle license for 1233 N. Limestone Street, Gaffney, South Carolina, by Teresa Rose, d/b/a Brandi's Restaurant (hereinafter referred to as "Petitioner"), filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). The Petitioner held an existing permit and license for the proposed location by virtue of an Order issued after a hearing by Administrative Law Judge John D. Geathers, by his Order dated March 29, 1995. In the present matter, Petitioner seeks issuance of a new license and permit, free of a 10:00 p.m. closing restriction imposed by Judge Geathers' Order. The contested case hearing was held in Gaffney at the Cherokee County Courthouse, on February 9, 1996.

By my Order filed February 23, 1996, the restrictions imposed by Judge Geathers were left intact, based on the finding that the Petitioner failed to establish any material change with respect to the location since the restrictions were originally imposed, and the conclusion that this tribunal was bound by collateral estoppel from removing the existing restrictions. Accordingly, the permit and license sought were granted with the same conditions imposed in the Judge Geathers' Order. Petitioner appealed that decision to the circuit court, and the circuit court concluded that the doctrine of collateral estoppel did not apply in light of evidence of a material change in condition. The circuit court found that the installation of sound-deadening insulation by Petitioner amounted to a material change. The matter was remanded to the Administrative Law Judge Division for the purpose of issuing a new Order without the application of the doctrine of collateral estoppel.

Petitioner has installed sound deadening insulation at the licensed location since the initial permit was granted. That change, regardless of its materiality, is not sufficient reason to remove the 10:00 p.m. closing restriction, however. The record contains uncontroverted evidence that the character of the surrounding neighborhood is unchanged and that the neighboring residents continue to oppose the unrestricted sale of liquor, beer and wine for on-premises consumption at the location. Local law enforcement also maintains its opposition to a restriction-free permit, citing the need to respond to several 911 calls relating to the licensed location since it was first granted the license and permit. Even without the application of collateral estoppel, continued enforcement of the restrictions imposed by Judge Geathers is warranted. While the installation of the insulation may be a material change, it is not ample reason, in and of itself, to alter the permit and license conditions.

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 material change to the proposed location since issuance of the initial license and permit to Petitioner is the installation of sound-deadening insulation in the windows, with the windows blacked out.
  11. Petitioner failed to prove that the installation of sound-deadening insulation in the windows has eliminated noise problems experienced by neighboring residents.
  12. 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.
  13. 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.
  14. 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.
  15. Notice of the time, date, place, and subject matter of the hearing was given to the Petitioner, protestants, and DOR.
  16. 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.
  17. 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.
  18. The applicant has never had a permit or license revoked.
  19. Petitioner is of good moral character and is of suitable fitness and temperament to hold a beer and wine permit and minibottle license.
  20. 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. The determination of suitability of a location is not necessarily a function solely 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 to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 335 (1985).
  6. A proposed location may be deemed unsuitable for the sale of beer and wine because of the following factors: the rural residential nature of the surrounding community; the close proximity of residences, a school, and a church; the absence of any other licensed locations in the immediate vicinity; the existence of students and small children in the area; and the overall adverse impact on the community.
  7. The proximity of residences, schools, playgrounds, or churches is a proper ground by itself to deny a permit to a location. William Byers v. S.C. A.B.C. Commission, 305 S.C. 243, 407 S.E.2d 476 (Ct. App. 1984).
  8. 23 S.C. Code Ann. Regs. 7-88 (1976), provides for the inclusion of stipulations to a beer and wine permit, with the stipulations incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and having the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.
  9. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
  10. 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.
  11. To assure that the sale and service of beer, wine, or liquor is provided in a manner consistent with the normal operation of a restaurant, a restriction upon the hours of operation is reasonable and necessary.
  12. Because there are numerous residences in close proximity to the proposed location and most of the residents are elderly, it is reasonable to impose limited restrictions to protect residents from the noise, inconvenience, disruption, and hazards associated with the operation of an establishment which serves beer, wine, or liquor, including a restriction upon the hours of operation.
  13. The proposed location is a suitable and proper location to sell and serve beer, wine, and liquor for on-premises consumption in connection with the service of meals in a restaurantsetting; however, because of the close proximity of numerous residences, the proposed location is not a suitable or proper location to sell and serve beer, wine, and liquor for on-premises consumption as a bar, lounge, or nightclub, nor to operate after normal meal hours.


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

January 16, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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