ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 &
Supp. 1997), 61-2-260 (Supp. 1997) upon the filing of applications (AI #118086 and
AI #118087) by Petitioner for an on-premises beer and wine permit and sale and consumption
minibottle license for a location at 4930 Highway 17 South, North Myrtle Beach, South Carolina.
Upon receipt of a written protest to the application, the South Carolina Department of Revenue
("DOR") transmitted the case to the Administrative Law Judge Division for a hearing. The
contested case hearing was conducted on April 13, 1998, at the Horry County Courthouse in
Conway, South Carolina. Protestant's Motions for Continuance and Intervention were denied.
Petitioner testified in support of the application and Protestant testified. Upon review of the
relevant and probative evidence and applicable law, I find that the proposed location is suitable
and that Petitioner is a fit and proper person to be licensed. The applications for an on-premises
beer and wine permit and sale and consumption minibottle license are therefore granted.
DISCUSSION
The proposed location is a restaurant and bar located in the Barefoot Landing shopping and
dining complex in North Myrtle Beach which previously was licensed to sell beer, wine, and
liquor for on-premises consumption, while operating as the "Alabama Grill." Petitioner, who is
Vice President and Managing Partner of Barefoot Landing, is applying for the permit and license
as the designated agent of Norman's Myrtle Beach One LP, a company based in Mississippi.
Petitioner is not associated with Norman's Myrtle Beach One LP, except in his capacity as agent
to obtain and hold ABC licenses and as lessor of the proposed location.
The suitability of the proposed location is not at issue in this case. Opposition to the application
is based primarily upon the proposed location's intended use of the phrase "Downunder" in its
name. Protestant Allan A.J. Pratt is the owner and manager of an establishment in Little River,
South Carolina, known as the Downunder Deli. Pratt claims to have an exclusive legal right to
utilize that name and claims that unless Petitioner is enjoined from using "Downunder" in the
name of the proposed location, consumer confusion will result which may irreparably harm
Pratt's business. The ALJD does not have the jurisdiction to consider trademark infringement
issues. If Protestant has recourse to prevent the use of the word "Downunder" by Petitioner, that
recourse lies elsewhere. The only issue before the ALJD is whether the license and permit
applied for should be granted to the applicant for the proposed location.
Pratt also claims that Petitioner Felts is not a fit or proper person to hold the license and
permit applied for on the allegation that Felts perjured himself in an unrelated criminal
proceeding in which Felts was a witness and Pratt the defendant. Allegedly, Felt testified that he
had no connection to or business interest in the proposed location. No transcript of Felts'
testimony was available at the contested case hearing. This court can not determine the exact
words used by Felts in his sworn testimony in the previous matter, nor the context in which they
were offered.
Even if Felts testified in the criminal action exactly as Pratt says, such a representation by Felts,
in and of itself, is insufficient to disqualify Felts from holding an ABC license. No other
evidence of poor moral character or lack of fitness was offered. Felts has never been arrested or
convicted for any criminal wrongdoing.
For the foregoing reasons, the license and permit sought must be granted.
FINDINGS OF FACT
By the preponderance of the evidence, I make the following Findings of Fact:
Petitioner seeks an on-premises beer and wine permit and sale and consumption
minibottle license for a location at 4930 Highway 17 South, North Myrtle Beach, South
Carolina, having filed application with DOR (AI #118086 and AI #118087).
Petitioner, the Vice President and Managing Partner of Barefoot Landing, is applying for
the permit and license as the designated agent of Norman's Myrtle Beach One LP, a company
based in Mississippi.
Except as the agent designated to obtain and hold ABC licenses and the lessor of the
proposed location, Petitioner will have no role in the management or operation of the proposed
location or with Norman's Myrtle Beach One LP.
The proposed location is a restaurant and bar located in the Barefoot Landing shopping
and dining complex in North Myrtle Beach which previously was licensed to sell beer, wine,
and liquor for on-premises consumption while operating as the "Alabama Grill."
It is stipulated that the proposed location is suitable to be licensed for the on-premises
consumption of beer, wine, and liquor.
Protestant Allan A.J. Pratt is the owner and manager of an establishment in Little River,
South Carolina, known as the "Downunder Deli."
Upon motion granted, DOR was excused from appearance at and participation in the
contested case hearing on the ground that it would have granted the permit but for the written
protest.
Petitioner Felts has never been arrested or convicted for any criminal wrongdoing.
Petitioner has never been cited for a violation of the alcoholic beverage control laws and
has never had a permit to sell beer and wine revoked.
Petitioner is of good moral character.
Petitioner is a fit person to sell beer and wine.
Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and
has maintained his principal residence in South Carolina for more than thirty days.
Notice of application appeared in the North Myrtle Beach Times on October 23 and 30,
1997, and on November 6, 1997.
The proposed location is suitable to sell liquor, beer, and wine for on-premises
consumption.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
The South Carolina Administrative Law Judge Division has jurisdiction over this subject
matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and §§ 1-23-310 et seq. (1986 &
Supp. 1997).
S.C. Code Ann. § 61-4-520 (Supp. 1997) provides the criteria to be met by an applicant
for a beer and wine permit in South Carolina.
S.C. Code Ann. § 61-6-1820 (Supp. 1997) provides the criteria to be met by an applicant
for a minibottle license in South Carolina.
"[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed." Palmer v.
South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
As the trier of fact, an administrative law judge is authorized to determine the fitness or
suitability of the proposed business location of an applicant for a permit to sell beer and wine
using broad but not unbridled discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566,
316 S.E.2d 705 (Ct. App. 1984)
An applicant for a beer and wine permit and a minibottle license is required, among
other things, to be of good moral character. S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp.
1997).1994); Toussaint v. State Board of Medical Examiners, 303 S.C. 316, 400 S.E.2d 488
(1991).
Although there is no single criterion by which to determine if a person is of good moral
character, commission of a crime involving moral turpitude implies the absence of good moral
character. 1969 Op. S.C. Att'y Gen. No. 2709 at 159; 1989 S.C. Op. Att'y Gen. No. 89-89 at
237.
"Moral turpitude" is that which one does against justice and honesty, good morals, or
willful dishonesty for one's own gain. State v. Morris, 289 S.C. 294, 345 S.E.2d 477 (1986).
When the relevant testimony of those opposing the permit consists of opinions,
generalities, and conclusions unsupported by fact, the denial of a permit on the ground of
unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181
(1981). Such unsupported allegations form an insufficient basis for denial. Taylor v. Lewis, 261
S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
The trier of fact must weigh and pass upon the credibility of evidence presented. See
S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586
(1992). The trial judge who observes a witness is in the best position to judge the witness's
demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481,
299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker,
285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44
(Ct. App. 1984).
There is no statutory condition for issuance of a beer and wine permit or minibottle
license which requires the applicant to be an owner of the business or have any managerial
authority of the licensed premises.
The proposed location is a suitable one for the sale of liquor, beer and wine for on-premises consumption.
Petitioner meets the statutory qualifications to hold a permit to sell beer and wine and
liquor. S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1997).
The ALJD is without jurisdiction to consider the issue of whether the proposed business
is legally prohibited from using the phrase "Downunder" or any other words, in its business
name.
Any issues raised or presented in the proceedings or hearing of this case not specifically
addressed in this Order are deemed denied. ALJD Rule 29(B).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the on-premises beer and wine permit and sale and
consumption minibottle license sought by Petitioner is granted.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May 6, 1998
Columbia, South Carolina |
