South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
James Moore, Ebenezer Grill Inc. d/b/a Ebenezer Grill vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
James Moore, Ebenezer Grill Inc. d/b/a Ebenezer Grill

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0461-CC

APPEARANCES:
For the Petitioner: James M. Morton, Esquire

For the Respondent: No Appearance

For the Protestants/Dickert and Fuller: Pro Se
 

ORDERS:

FINAL 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, James Moore, seeks an on-premise beer and wine permit and a sale and consumption license for the Ebenezer Grill. The Respondent made a Motion to be Excused from the hearing which was granted by my Order dated November 4, 1996. A hearing was held on December 19, 1996 at the Administrative Law Judge Division.

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. The Petitioner seeks an on-premise beer and wine permit and a sale and consumption license for the Ebenezer Grill at 1525 Ebenezer Road, Rock Hill, South Carolina.

2. Notice of the time, date, place and subject matter of the hearing was given to the Respondent, the Protestants, and the South Carolina Department of Revenue.

3. The Protestants contend the proposed location is unsuitable for the following reasons:

a) The proposed location will decrease public safety;
b) The proposed location is not properly zoned for this business;
c) The proposed location will lower property values in the neighborhood; and
d) The proposed location does not have adequate space for parking.

4. The qualifications set forth in S. C. Code Ann. §§ 6-9-320 and 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.

5. The Petitioner is of sufficient moral character to receive an on-premise beer and wine permit and a mini-bottle sale and consumption license.

6. The proposed location is not unreasonably close to any church, school or playground.

7. The proposed location is in a commercial area of Rock Hill. It has been permitted for the sale of beer and wine the previous ten years and licensed for mini-bottle sales the previous three years.

8. The Petitioner has periodically owned the proposed location over the last 10 years. He currently opens at approximately 5:30 a.m. and closes at approximately 8:00 p.m. The proposed location is primarily a family restaurant. However, from 5:00 p.m. to closing the Petitioner has a "Happy hour" in which liquor is sold. At times the Petitioner's parking area is full. However, the Petitioner testified that he has given permission for his customers to park in a sufficient parking area that is owned by "Sunkist."

9. With the exception of one minor occurrence, there have been no law enforcement problems at or deriving from the Petitioner's location.

10. The proposed location is suitable for an on-premise beer and wine permit and a mini-bottle sale and consumption license only with the restrictions set forth below.

STIPULATION

The Petitioner stipulated at the hearing that he would abide by the following restrictions if granted an on-premise beer and wine permit and a mini-bottle sale and consumption license:

The Petitioner will post signs and monitor the area approved by the Department for his patrons parking at the location to insure that no parking occurs outside of the approved area.

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) set forth the requirements for the issuance of an on-premise beer and wine permit and a mini-bottle sale and consumption license.

4. 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) is met. That section requires that a mini-bottle license be granted only to a bonafide business engaged in either 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. 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).

6. 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).

7. 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).

8. 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).

9. 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 must issue the permit or license after payment of the prescribed fee.

10. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. They are, rather, privileges granted in the exercise of the state's police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Judge, as the tribunal authorized to grant the issuance of a permit, may likewise place restrictions or conditions on the permit or license. See, Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, 23 S.C. Code Ann. Regs. 7-88 (1976) authorizing the imposition of restrictions to permits, provides:

Any stipulation and/or agreement which is voluntarily entered into by an applicant in writing for a beer and wine permit between the applicant and the South Carolina Alcoholic Beverage Control Commission, if accepted by the Commission, will be incorporated into the basic requirements for the enjoyment and privilege of obtaining and retaining the beer and wine permit and which shall have the same effect as any and all laws and any and all other regulations pertaining to the effective administration of beer and wine permittees.
In the event that evidence is presented to this Commission that any part of the stipulation or agreement is or has been knowingly broken by the permittee will be a violation against the permit and shall constitute sufficient grounds to suspend or revoke said beer and wine permit.

11. A license should be granted to a location that has been recently permitted or licensed absent some showing that the location is now less suitable than in the past. Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973).

12. Land use decisions are primarily the responsibility of zoning authorities who exercise wide discretion in decision making. See Bear Enterprises v. County of Greenville, ___ S.C. ___, 459 S.E.2d 883 (Ct. App. 1995); Rushing v. City of Greenville, 265 S.C. 285, 217 S.E.2d 797 (1975).

13. I conclude that the Petitioner meets all the statutory requirements for holding a beer and wine permit and a mini-bottle sale and consumption license at the proposed location. Accordingly, I conclude that the proposed location is a proper one for granting the above permit and license with the following restrictions in the form of written stipulations.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the on-premise beer and wine permit and mini-bottle sale and consumption license application of James Moore for the Ebenezer Grill be granted upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue to adhere to the stipulations set forth in the Findings of Fact and the restriction set forth below:

The Petitioner shall establish a customer parking plan that is approved in writing by the South Carolina Department of Revenue and the individual owners of the parking area.

IT IS FURTHER ORDERED that a violation of any of the above restrictions is considered a violation against the permit and license and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue an on-premise beer and wine permit and a mini-bottle sale and consumption license upon the payment of the required fees and costs by the Petitioner.

AND IT IS SO ORDERED.



__________________________

Ralph King Anderson, III

Administrative Law Judge

January 16, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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