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. 1995) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1995)
for a contested case hearing. The Petitioner, Dorothy J.O. Little, seeks a mini-bottle sale and
consumption license for Chelsea's. The Respondent's attorney made a Motion to be Excused
which was granted by my Order dated October 14, 1996. A hearing was held on December 10,
1996, at the Administrative Law Judge Division.
The license requested by the Petitioner is approved.
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. The Petitioner seeks a mini-bottle sale and consumption license for Chelsea's of Clemson, Inc.
located at 10500 Hunnicutt Drive, Seneca, South Carolina.
2. Notice of the time, date, place and subject matter of the hearing was given to all parties
involved.
3. The qualifications set forth in S. C. Code Ann. § 61-5-50 (Supp. 1995) 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 mini-bottle sale and consumption
license.
5. The proposed location is not unreasonably close to any church, school or playground.
6. The proposed location has previously been permitted for the on-premise sale of beer and wine
on October 23, 1993. Thereafter, the Petitioner, herself, obtained an on-premise beer and wine
permit in 1995.
7. The proposed location is on a four-lane highway in a commercial area of Oconee County. The
closest residential area is several hundred yards away.
8. The Petitioner seeks a permit for a restaurant that she proposes will seat 40 people. However,
the location does not currently have a kitchen area which complies with 23 S.C. Code Regs. 7-19
(1976). Furthermore, since the location does not have an acceptable kitchen, it also obviously has
not received a "Grade A" food service permit. See S.C. Code Ann. §61-5-10(1) (Supp. 1995).
9. The proposed location is suitable for a mini-bottle sale and consumption license upon the
Petitioner's construction of an approved kitchen and the receipt of a "Grade A" food service
permit.
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. 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 "bona fide nonprofit organization" or a bona fide business
"engaged primarily and substantially in the preparation and serving of meals or furnishing of
lodging, as described in Section 61-5-10." 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.
4. S.C. Code Ann. § 61-5-10 (Supp.1995) provides that "'a bona fide [business] engaged primarily
and substantially in the preparation and serving of meals' shall refer only to such a business which
has been issued a Class A restaurant license prior to issuance of license under this article and in
addition provides facilities for seating not less than forty persons simultaneously at tables for the
service of meals."
5. "Any business establishment that applies for or holds a sale and consumption license pursuant
to § 61-5-20 (4) of the Code and is not engaged in the furnishing of lodging, must . . . be
equipped with a kitchen that is utilized for the cooking, preparation, and serving of meals." 23
S.C. Code Regs. 7-19 (1976).
6. 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, 281 S.E.2d 118 (1981).
7. 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 permit to sell beer and wine
using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
8. 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).
9. 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 a Protestant objects to the issuance of
a permit 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).
10. In considering the suitability of a location, it is relevant to consider the previous history of the
location and to decide whether the testimony opposing the granting of a permit is based on
opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt,
258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801
(1973).
11. The Petitioner meets the statutory requirements for holding a mini-bottle sale and
consumption license at the proposed location upon her compliance with Section 61-5-10 (1) and
Regulation 7-19.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application for a sale and consumption license of Dorothy J.O. Little for
Chelsea's be granted upon the payment of the required fee and cost by the Petitioner and the
Department's approval of her upon her compliance with Section 61-5-10 (1) and Regulation 7-19.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
January 15, 1997
Columbia, South Carolina |