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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Dorothy J.O. Little, Chelsea's of Clemson, Inc., d/b/a Chelsea's vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Dorothy J.O. Little, Chelsea's of Clemson, Inc., d/b/a Chelsea's

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0421-CC

APPEARANCES:
For the Petitioner: Robert P. Lusk, Esquire

For the Protestant: No Appearance

For the Department: No Appearance
 

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


Brown Bldg.

 

 

 

 

 

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