SC Administrative Law Court Decisions

The Petitioner, John W. Casey, d/b/a Jim Casey's Deli Pub (Casey) of Columbia, South Carolina filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine permit and a restaurant minibottle license for 3824 Rosewood Drive, Columbia, South Carolina. S. Sifford Spears filed a protest seeking to prevent DOR from granting the permit. A hearing on the beer and wine application is required under 23 S.C. Code Regs. 7-90 (Supp. 1996). As to mini-bottles, a hearing is required under S.C. Code Regs. 7-3 (Supp. 1996). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the required hearings under the contested case hearing provisions contained in S.C. Code Ann. §§ 1-23-310 and 1-23-600(B) (Supp. 1996). The relevant factors require granting the permit with restrictions, which were agreed upon by Casey and the protestant.

Does Casey meet the statutory requirements for a beer and wine permit and a mini-bottle license?

III. Analysis

1. Positions of Parties:

Casey asserts he meets the statutory 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. Prior to agreement on restrictions, the protestant asserted the proposed location would have been improper.

2. Findings of Fact:

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

a. General

1. On November 15, 1996, Casey filed an application with the Department of Revenue for an on-premises beer and wine permit and a mini-bottle license.

2. The application is identified by DOR as AI # 111838 and AI # 111839.

3. The proposed business location and the place where the beer and wine permit and the mini-bottle license will be utilized is 3824 Rosewood Drive, Columbia, South Carolina.

4. The business will operate as a deli-lounge.

5. A protest to the application was filed by S. Sifford Spears, Jr.

6. Except for the unresolved suitability of location issue, DOR would have issued the permit.

7. The hearing was held May 28, 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

8. The State Law Enforcement Division (SLED) investigated the applicant's criminal background.

9. The SLED report revealed no criminal violations.

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

11. Casey is of good moral character.

c. Legal Resident and Principal Place of Abode

12. Casey was born in South Carolina and has resided in South Carolina since his birth.

13. Casey holds a valid South Carolina driver's license.

14. Casey currently resides at 4401 Nelson Avenue, Columbia, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

15. Casey 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

16. Casey has never had a beer and wine permit revoked.

e. Age

17. Casey's date of birth is June 21, 1931.

18. Casey is over twenty-one years of age.

f. Proposed Location

19. The same location has been operated in the past with a beer and wine permit and a mini-bottle license as Keg O'Nails.

20. While the former owner was charged with the sale of beer during restricted hours, and sale of beer to a person under 21, no other reported criminal activity has occurred at the proposed location during the recent past.

21. The proposed location is predominantly commercial with a residential area across the street from the proposed location.

22. The addition of a beer and wine permit and a mini-bottle license will not significantly impact the character of the neighborhood.

23. No evidence demonstrates the proposed location interferes with church activities in the area.

24. The proposed location is not within an improper proximity to churches in the area.

25. The location is adequately served by the traffic route of Rosewood Drive.

26. Beer and wine permits and mini-bottle licenses are in use by similar businesses in the Rosewood area.

27. Live music on the exterior of the building after 6:00 p.m. is not conducive to the community in which Casey will use his permit and license.

g. Notice

28. Notice of the application was published in the Star Reporter, a newspaper published and distributed in Richland County, with notice published on November 21, 28 and December 5, 1996.

29. Notice of the Casey application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens.

30. Casey gave notice to the public by displaying a sign for fifteen days at the proposed business.

31. Casey gave notice of the application by the required advertising by newspaper and display of signs.

3. Discussion

a. General Criteria

No dispute exists that the applicant satisfies the requirements for a beer and wine permit and a minibottle license except for the dispute over whether the location is proper. Under S.C. Code Ann. § 61-4-520 (Supp. 1996), no beer and wine permit may be granted unless the location is a proper location. Likewise, in granting a mini-bottle license, suitability of the location is a proper consideration. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). In the case before me, the most relevant consideration is whether similar existing businesses are in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). However, to the extent concerns are valid, restrictions may be appropriate. The granting of a beer and wine permit or a mini-bottle license is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1996); 23 S.C. Code Regs. 7-88 (1976).

b. Basis For Decision

I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. Here, the area in which Casey will locate has several commercial establishments providing either beer and wine or mini-bottle sales. While residences are across the street, the area is predominately commercial and the addition of a beer and wine permit and a mini-bottle license will not significantly impact the character of the neighborhood.

While the area is proper for the permit and license sought, the need to restrict unnecessary noise warrants restrictions. Here, some of the members of the Rosewood Community Council live across the street from the proposed location and are entitled to enjoy their property without excessive noise from the proposed location. Accordingly, after 6:00 p.m., Casey shall allow no live musical entertainment on the exterior of his location regardless of the day of the week.

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 conducts a business engaged primarily and substantially in the preparation and serving of meals. S.C. Code Ann. § 61-6-1820(1) (Supp. 1996).

2. The applicant possesses good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 1996); S.C. Code Ann. § 61-6-1820(2) (Supp. 1996).

3. 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. § 61-4-520(2) (Supp. 1996); S.C. Code Ann. § 61-6-1820(7) (Supp. 1996).

4. 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. § 61-4-520(4) (Supp. 1996).

5. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1996); S.C. Code Ann. § 61-6-1820(6) (Supp. 1996).

6. With restrictions, the applicant's location is suitable and is a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

7. Consideration must be given to whether the granting of the permit and license will have an adverse effect on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8. The proximity of the location to residences is a proper consideration. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

9. The existence or lack of existence of other similar businesses in the area is a factor to consider in reviewing a permit or license. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

10. The presence of loud music combined with proximity to residences is a factor in denying a permit or license. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

11. With restrictions, the proposed location is a proper location for a beer and wine permit and for a mini-bottle license. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); S.C. Code Ann. § 61-6-1820(3) (Supp. 1996).

12. The granting of a beer and wine permit and the granting of a mini-bottle license is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943).

13. Permits and licenses are authorized by statute and regulation to be issued by DOR with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1996); 23 S.C. Code Regs. 7-88 (1976).

14. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(7) and (8) (Supp. 1996); S.C. Code Ann. § 61-6-1820(4) and (5) (Supp. 1996).

15. With restrictions, the applicant meets the requirements for the issuance of a mini-bottle license pursuant to S.C. Code Ann. § 61-6-1820 (Supp. 1996).

16. With restrictions, the applicant meets the requirements for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1996).

DOR is ordered to grant Casey's applications for an on-premises beer and wine permit and a sale and consumption license at 3824 Rosewood Drive, Columbia, South Carolina upon Casey's signing an agreement with DOR to adhere to the following restriction: after 6:00 p.m., Casey shall allow no live musical entertainment on the exterior of his location regardless of the day of the week.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 3rd day of June, 1997

Columbia, South Carolina