South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Ethbert L. Pooser, Jr., Johnson's Marina Partners LP, d/b/a Lighthouse Marina vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Ethbert L. Pooser, Jr., Johnson's Marina Partners LP, d/b/a Lighthouse Marina

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0523-CC

APPEARANCES:
Thomas W. Lavender, Jr., Esq., for Petitioner

Arlene D. Hand, Esq., for Respondent, Excused from Appearance

Shelby Koraido, Protestant
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Ethbert L. Pooser, Jr. (Pooser) of Columbia, South Carolina filed with the South Carolina Department of Revenue (DOR), the Respondent, a renewal for a beer and wine permit for 1925 Johnson's Marina Road, Chapin, South Carolina. Deidre and Harlon Drew and Shelby Koraido filed protests seeking to prevent DOR from granting the permit. 23 S.C. Code Regs. 7-90 (Supp. 1996) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1996). The evidence and relevant factors require granting the permit renewal.

II. Issue


Does Pooser meet the requirements for a renewal of his beer and wine permit?









III. Analysis

1. Positions of Parties:

Pooser asserts he meets all requirements. DOR states that since a protest prevents the granting of a permit until a hearing is held, DOR awaits the outcome of that hearing. The protestants assert only one basis for denying the permit: the proposed location is not proper due to excessive noise generated by music and bands at Pooser's location.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about July 23, 1996, Pooser filed with the Department of Revenue an application for a renewal of a beer and wine permit.

2. The application is identified by DOR as AI 92095 and the permit sought to be renewed is BW 613355.

3. The proposed business location and the place where the beer and wine permit will be utilized is a dock house located at 1925 Johnson's Marina Road, Chapin, South Carolina.

4. The business is a marina selling fuel, ice, beer and wine, and assorted fishing supplies.

5. Sales of beer and wine account for approximately 1% of the total sales of the business.

6. No entertainment is provided at the dock house.

7. No live music or recorded music is provided at the dock house.

8. A protest to the application was filed by Deidre and Harlon Drew and Shelby Koraido.

9. Except for the unresolved suitability of location issue, DOR would have renewed the permit.

10. The hearing was held February 12, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

b. Moral Character

11. The applicant's actions and conduct do not imply the absence of good moral character.

12. The applicant is of good moral character.

c. Legal Resident and Principal Place of Abode

13. Pooser currently resides in South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

14. Pooser is a legal resident of the United States and South Carolina, has held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

d. Prior Revocation Of Beer or Wine Permit

15. Pooser has not had a beer and wine permit revoked.

e. Age

16. Pooser is over twenty-one years of age.

f. Proposed Location

17. Pooser has operated with an on-premises beer and wine permit for several years and now seeks to renew his permit.

18. No reported criminal activity exists at the proposed location.

19. Beer and wine as well as mini-bottles are sold under an on-premises permit and license by a nearby restaurant known as the Rusty Anchor.

20. The Rusty Anchor is owned and operated by an entity separate from the ownership and operation of the dock house.

21. The Rusty Anchor provides live entertainment and live music.

22. The Rusty Anchor holds a beer and wine permit designated as BW 819163 and mini-bottle license designated as SB 819162 with both expiring August 31, 1998.

23. The beer and wine permit and the mini-bottle license of the Rusty Anchor have not expired and are not under review in this matter.

24. No evidence exists to support a finding that either live or recorded music occurs at the dock house.

25. No evidence exists to support a finding that live or recorded entertainment occurs at the dock house.

26. No evidence exists to support a finding that excessive noise is produced by the operation of the dock house business.

27. The location is adequately served by the traffic route of Johnson Marina Road.

28. The location is a proper location for a beer and wine permit.

3. Discussion

Pooser seeks a renewal of a beer and wine permit identified as BW 613355 for utilization at a dock house primarily selling fuel and boating supplies. The dock house does not provide music or entertainment. Music and entertainment is provided, however, at a nearby restaurant known as the Rusty Anchor. The Rusty Anchor restaurant is separately owned and operated from the dock house and the restaurant holds its own beer and wine permit (BW 819163) as well as a mini-bottle license (SB 819162). The permit and license of the Rusty Anchor are not under review. Rather, the Rusty Anchor permit and license were previously issued by DOR and do not expire until August 31, 1998. Accordingly, since permit BW 613355 does not generate excessive noise due to music or entertainment, the renewal must be granted.4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995).

2. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995).

3. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-9-320(4) (Supp. 1995).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995).

5. The proposed location is a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

6. The applicant meets the requirements for the renewal of beer and wine permit BW 613355.

IV. ORDER


DOR is ordered to grant Pooser's application for a renewal of beer and wine permit BW 613355 at 1925 Johnson's Marina Road, Chapin, South Carolina.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 21st day of February, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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