SC Administrative Law Court Decisions

The Petitioner, Dorothy J. O. Little (Little) of Seneca, South Carolina filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit for 10500 Hunnicutt Drive, Seneca, South Carolina. Gerald D. Schile filed a protest seeking to prevent DOR from granting the license. A hearing on the application was required since "[n]o application for [a] beer and wine permit will be approved by the Alcohol Beverage Control Commission [now DOR] unless a hearing is held in the matter when the issuance of the permit is protested by one or more persons." 23 S.C. Code Regs. 7-90 (Supp. 1995). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the hearing required by Regs. 7-90, with such hearing held under the contested case provisions of S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1995).

After considering all of the evidence and relevant factors, the permit is granted. Any issues raised in the proceedings or hearing of this case but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).

Does Little meet the statutory requirements of S. C. Code Ann. § 61-9-320 (Supp. 1995) by demonstrating she possesses good moral character, has been a legal resident of the United States and South Carolina for 30 days, has held a principal place of abode in South Carolina for 30 days prior to filing the application, has not had a beer or wine permit revoked within two years of the date of the current application, is twenty-one years of age or older, will utilize the permit at a proposed location that is proper, and gave notice of the application by way of required advertising by newspaper and the display of signs?

III. Analysis

1. Positions of Parties:

Little asserts she meets all the requirements of the statute. DOR states that due to the protest, no permit could be granted and it awaits the outcome of this hearing. The protestant asserts insufficient notice via advertising was conducted, Little lacks good moral character, and Little will not make decisions concerning the business independently of her father, who allegedly has a criminal background.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about November 6, 1995, Little filed an application with the Department of Revenue for an on-premises beer and wine permit.

2. The application is identified by DOR as AI # 105882.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is 10500 Hunnicutt Drive, Seneca, South Carolina.

4. The nature of the business is that of providing entertainment operating under the name of Chelsea's of Clemson, Inc.

5. A protest to the application was filed by Gerald D. Schile.

6. Except for the protest, DOR would have issued the permit.

7. The hearing on this matter was held February, 7, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

b. Moral Character

8. The State Law Enforcement Division (SLED) completed a criminal background investigation of the applicant.

9. The SLED report revealed no criminal violations.

10. The applicant has not engaged in acts or conduct that imply the absence of good moral character.

11. The applicant is of good moral character.

c. Legal Resident and Principal Place of Abode

12. Little is a resident of South Carolina and has resided in South Carolina since 1960.

13. Little holds a valid South Carolina driver's license.

14. Little currently resides at 516 Salem Road in Seneca, South Carolina, and has resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

15. Little is both a legal resident of the United States and South Carolina and has held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

d. Prior Revocation Of Beer or Wine Permit

16. Little has never had a beer and wine permit revoked.

e. Age

17. Little's date of birth is September 13, 1957.

18. Little is over twenty-one years of age.

f. Proposed Location

19. The prior owner of the existing location operated with an on-premises beer and wine permit.

20. The applicant will continue the same business as the prior owner.

21. The sheriff has investigated a break in at the proposed location and has been called concerning a dispute between two employees at the proposed location but there is no evidence of police investigation due to patron activities.

22. The proposed location is not in close proximity to churches, schools or residences.

23. There are other establishments in the area selling beer and wine as well as an ABC package store engaging in the sale of alcohol.

24. The location is adequately served by the four lane traffic route of Clemson Blvd. (Highway 123).

25. The area is not within the city limits and the proposed location is not the subject of a zoning dispute.

g. Notice

26. Notice of the Little application was published in the Journal/Tribune, a newspaper published and distributed in Oconee County, with notice published on November 8, 1995 and once each week thereafter for three consecutive weeks.

27. The first newspaper notice of the application listed the address of the location as 10500 Clemson Blvd.

28. Three subsequent newspaper notices listed the address as 10500 Hunnicutt Drive.

29. The mailing address for the location is 10500 Hunnicutt Drive.

30. Utility bills are paid with an address of 10500 Hunnicutt Drive.

31. Notice of the Little application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens.

32. Little gave notice to the public by displaying a sign for fifteen days at the site of the proposed business.

33. Little gave notice of the application by way of required advertising by newspaper and display of signs.

3. Discussion

a. Disputed Criteria

There is no factual dispute in this matter as to the applicant's satisfying the requirements of being both a legal resident of South Carolina for 30 days and having a principal place of abode in South Carolina for 30 days prior to filing the application, not having had a beer or wine permit revoked within two years of the date of the current application, being at least twenty-one years of age, and the area being a proper location. Rather, the issue is whether Little provided proper notice of the application by way of newspaper advertisement, whether the applicant is of good moral character, and whether Little will make decisions concerning the business independently of her father, who allegedly has a criminal background.

b. Basis For Decision

I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. I conclude the permit must be granted.

The first advertisement listed an address of Clemson Blvd. This address is technically in error since the actual address is Hunnicutt Drive. I find that any harm from the error was cured in that Little advertised the correct address for three weeks following the one week in which the error occurred. Additionally, it was proper to list in the advertisement the name of Chelsea's rather than the name of the former business conducted at the location. The new permit will be employed under the management of a corporation named Chelsea's of Clemson, Inc., with the new business carrying a tradename of Chelsea's. The prior business known as Player's already had a beer and wine permit and will be required to surrender that beer and wine upon the issuance of a permit to Chelsea's.

Before a permit may be issued, good moral character is required by S.C. Code Ann. § 61-9-320 (Supp. 1995). Generally, good moral character means one should possess all elements essential to make up that character, such as honesty and veracity. See Zemour, Inc. v. State Div. of Beverage, 347 So.2d 1102 (Fla. Dist. Ct. App. 1977). In the instant case, testimony was presented concerning the veracity of Little due to alleged misrepresentations made by her concerning the ownership of the land upon which the proposed location would operate and ownership of an automobile business. On the other hand, other testimony supported Little's claim to land ownership in that she is purchasing the land through a lease-purchase arrangement. Additional testimony asserted the automobile business was in fact owned by Little and not her father. Considering the evidence as a whole, I do not find Little lacks good moral character.

Finally, the testimony raised the issue of whether Little was capable of exercising her rights and duties under the permit or whether Little would be subject to the control of her father. Again considering the testimony as a whole, the evidence best supports the view Little's father would not control the operation and use of the permit. Both Little and the father testified no control existed and that decisions related to the permit and its utilization at Chelsea's would not be subject to the father's control.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995).

2. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995).

3. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-9-320(4) (Supp. 1995).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995).

5. The proximity of a proposed location to residences, churches, schools, and playgrounds can be a proper ground by itself to deny a permit to a proposed location. William Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

6. While not controlling, distances to a school from a proposed location are legitimate considerations in the review of a beer and wine permit. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

7. The existence of other similar businesses in the area is a factor in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

8. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

9. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-9-320(7) and (8) (Supp. 1995).

10. The applicant meets the requirements for the issuance of a beer and wine permit pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).

DOR is ordered to grant Little's application for an on-premises beer and wine permit at 10500 Hunnicutt Drive, Seneca, South Carolina.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 9th day of February, 1996.