ORDERS:
INTERLOCUTORY ORDER
This matter comes before me pursuant to S.C. Code Ann. §§ 61-5-20(3); 61-5-50(4);
61-9-340; and 1-23-310, et seq. (1986 & Supp. 1995); upon an application for an on-premises
beer and wine permit and club sale and consumption minibottle license filed with the South
Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR") by John H.
Howard, for a location at 210 Black Oak Drive, Bonneau, South Carolina. A hearing was held
June 6, 1996.
The application was opposed by Lois Malone. Ms. Malone, a former partner and business
associate of the Petitioner, alleges Petitioner is not authorized to seek a club sale and consumption
minibottle license under the name of Paradise Cove, Inc., as he is not an officer or authorized
agent of that non-profit corporation. Ms. Malone asserts that she and Gaye K. Mixon were the
original officers of the corporation, incorporated November 15, 1993, and that Malone continues
to be an officer. Mr. Howard and Ms. Malone stated that Ms. Mixon, who is no longer
associated with Howard, Malone, or Paradise Cove, Inc., and not present at the hearing, is in
possession of all corporation records. The evidence submitted is insufficient to determine if
Paradise Cove, Inc., is currently a bona fide nonprofit corporation. The record is also
inconclusive as to the identity of the present officers of Paradise Cove, Inc., and whether
Petitioner has the legal authority to act on the corporation's behalf.
DOR did not appear at the hearing, having been excused from participation upon its
Motion To Be Excused, dated April 16, 1996, being granted by Order of this Court dated
April 26, 1996. DOR's Motion was based upon the following assertions:
1. [DOR] contends there is no controversy between Petitioner and [DOR];
2. [DOR] would have issued this license or permit but for the unanswered question
of the suitability of the location;
3. [DOR] has no evidence it wishes to offer concerning the issuance of this permit
or license.
Suitability of location is not an issue in this case, however. Protestant's written protest makes
that clear, and Petitioner and Protestant stipulated as to the suitability of the proposed location at
the hearing.
S.C. Code Ann. §§ 61-5-20(3); 61-5-50(4) (Supp. 1995) and S.C. Code Ann. Regs. 7-17
(Supp. 1995) set forth the criteria for a bona fide nonprofit corporation to be eligible for a
minibottle license. It is not discernible from the hearing record or the application file transmitted
to the ALJD from DOR whether Petitioner meets those requirements. (Copies of all hearing
exhibits are attached hereto.) Based upon DOR's Motion to Be Excused, the substance of
Protestant's concerns does not appear to have been addressed by DOR in its review of
Petitioner's application.
To make an informed decision, it is necessary for the licensing agency to perform a more
detailed review of the license application and to report its findings to the court. An administrative
law judge possesses the power to issue remedial writs to give effect to his jurisdiction and
authority. S.C. Code Ann. § 1-23-630 (Supp. 1995).
IT IS THEREFORE ORDERED that DOR, by and through its authorized
representatives or through agents of SLED's Alcohol Enforcement Unit, shall make such inquiry
and investigation and review such records as is necessary to make a determination and take an
agency position on the following issues:
- The names and addresses of the current officers of Paradise Cove, Inc.
- The current status of Paradise Cove, Inc., and whether it is a bona fide nonprofit
corporation;
- The authority of Petitioner John H. Howard to act on behalf of Paradise Cove,
Inc.;
- The authority of Protestant Lois Malone to act on behalf of Paradise Cove, Inc.
IT IS FURTHER ORDERED that DOR shall complete its investigation and review and
file with this Court and serve on the Petitioner and Protestant a memorandum describing its
efforts and setting forth its agency position on the above issues no later than July 10, 1996.
Upon receipt of the DOR memorandum, the Court will decide whether further
proceedings are necessary, and if so, will give notice of a hearing. If the memorandum received is
sufficient to allow the Court to make a determination on the application without further
proceedings, a Final Order will be issued accordingly.
AND IT SO ORDERED.
___________________________
STEPHEN P. BATES
Administrative Law Judge
June 11, 1996
Columbia, South Carolina |
