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. 1994) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1994)
for a contested case hearing. The Petitioner, Robert J. Parchini, seeks an on-premise beer and
wine permit, wine and liqueur cooking license and a mini-bottle sale and consumption license for
the Washington Street Cafe. A hearing was held on November 14, 1996, in 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. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner,
Protestants, and South Carolina Department of Revenue and Taxation.
2. The Petitioner seeks an on-premise beer and wine permit, wine and liqueur cooking license and
a mini-bottle sale and consumption license for the Washington Street Cafe located at 242
Washington Street, Walterboro, South Carolina.
3. The qualifications set forth in S. C. Code Ann. §61-9-320 (Supp. 1994) 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 is of sufficient moral character to receive a beer and wine permit.
5. The proposed location is not close to any school or playground.
6. The Petitioner operates an Italian restaurant in the heart of the city of Walterboro. William
Foster has previously held an on-premise beer and wine permit for the Washington Street Cafe
since 1995. The Petitioner now seeks to obtain a beer and wine permit in his name. There have
been no unfavorable incidents at the location since the restaurant has been permitted to sale beer
and wine. In fact, the Protestant did not even know the location served beer and wine until he
observed beer or wine being sold in the cafe while he was eating at the restaurant himself.
7. The cafe seats approximately 60 people and has a Grade " A" food rating. It is closed on
Sundays. The Department and the Protestant contend that both the permit and licenses should be
denied because of the proximity of the proposed location to the Walterboro Christian Center. The
evidence established that the Christian Center is located 119 feet from the proposed location
following the route of a pedestrian leaving the proposed location and walking directly across the
street and down toward Lucas street.
8. The Christian Center moved into the Walterboro City business district which already had a
retail liquor store in close proximity to the church.
9. The proposed location is suitable for an on-premise beer and wine permit. However, the wine
and liqueur cooking license and the mini-bottle sale and consumption are legally prohibited
because of the proximity of the proposed location to the Walterboro Christian Center.
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) sets 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) are met. That section requires that a mini-bottle license be granted only to a
bonafide business engaged either in 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. S.C. Code Ann. § 61-5-50 (Supp. 1995) provides that a sale and consumption license shall not
be granted unless the proposed location meets the minimum distance requirements from churches,
schools, or playgrounds as set forth in S.C. Code Ann. § 61-3-440 (Supp. 1995). Section
61-3-440 requires that a location within a municipality licensed to sell liquor must be a minimum
of three hundred feet (300') from any church, school, or playground.
6. 23 S.C. Code Regs. 7-11 (1976) provides:
With respect to a church or a school, the distance shall be measured from the entrance to
the place of business by following the shortest route of ordinary pedestrian or vehicular
travel along the public thoroughfare to the nearest point of entrance to the grounds of the
church or school, or any building in which religious services or school classes are held,
whichever is the closer. The Alcoholic Beverage Control Commission has determined that
the grounds in use as part of the church or school is restricted to the grounds immediately
surrounding the building or buildings which provide ingress or egress to such building or
buildings and does not extend to the grounds surrounding the church which may be used for
beautification, cemeteries, or any purpose other than such part of the land as is necessary to
leave the public thoroughfare and to enter or leave such building or buildings.
Only one entrance to the grounds of a church or school shall be considered, to wit: the
entrance to the grounds nearest an entrance to the church or school building.
Where no fence is involved, the nearest entrance to the grounds shall be in a straight line
from the public thoroughfare to the nearest door.
7. S.C. Code Ann. § 61-3-610 (Supp. 1995) provides that an establishment which offers meals to
the public may secure a license from the Department to purchase and possess liqueurs, wines, and
similar alcoholic beverages used solely in the cooking and preparation of foods served by the
establishment. That Section sets forth that the license "must" be under the "conditions prescribed
by the department." 23 S.C. Code Regs. 7-21 (C)(1976) provides that a food preparation license
will not be granted by the Department unless the Applicant possesses a sale and consumption
license.
8. 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, 595, 281 S.E.2d 118, 119 (1981).
9. 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).
10. 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).
11. 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).
12. 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.
13. I conclude that the Petitioner meets all the statutory requirements for holding a beer and wine
permit. However, the wine and liqueur cooking license and mini-bottle sale and consumption
license are legally prohibited because of the proximity of the proposed location to the church.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Robert J. Parchini for a wine and liqueur cooking license and
mini-bottle sale and consumption license is denied.
IT IS FURTHER ORDERED that the on-premise beer and wine permit application of Robert J.
Parchini for the Washington Street Cafe be granted upon the payment of the required fee and cost
by the Petitioner.
AND IT IS SO ORDERED.
______________________________________
Judge Ralph King Anderson, III
Administrative Law Judge
January 13, 1997
Columbia, South Carolina |