SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. § 1-23-310, et seq. (1986 & Supp. 1997) on Petitioner's application for an on-premises beer and wine permit and sale and consumption (minibottle) license for a restaurant and bar at 1437 Rushmore Drive, Columbia, South Carolina. Respondent South Carolina Department of Revenue ("DOR") does not oppose Petitioner's application, and this tribunal granted DOR's motion to be excused from appearing at the hearing. After notice to the parties, a hearing was conducted on September 25, 1998. No representative of the Pine Valley Homeowners Association, protestant of record, appeared at the hearing of this matter, thereby Protestant is deemed to have waived its protest.

Based upon the relevant and probative evidence and the applicable law, I find and conclude that the protestant is in default pursuant to ALJD Rule 23 for failure to appear at the September 25, 1998 hearing, and its protest is hereby dismissed. In addition, I find the proposed location is suitable for the issuance of an on-premises beer and wine permit and issuance of a minibottle license upon Petitioner's meeting the applicable requirements for a restaurant. The beer and wine permit and minibottle license are hereby granted accordingly.

FINDINGS OF FACT

By a preponderance of the evidence, I make the following findings of fact:

1. Petitioner, Alison Woodham, submitted an application for renewal of an on-premises beer and wine permit and a minibottle license with DOR on April 16, 1998, AI #121171 and AI #121172, for the premises located at 1437 Rushmore Drive, Columbia, South Carolina.

2. The proposed location will operate as a restaurant and nightclub, known as "Shag's."

3. The proposed location has held an on-premises beer and wine permit and minibottle license since approximately 1985.

1. The proposed restaurant has not yet been issued a Class "A" restaurant license by DHEC but plans to seek that permit in the near future.
2. The proposed location will seat more than forty persons at tables simultaneously for the service of meals.
3. Petitioner has had no criminal convictions within the past ten years, and he is a person of good moral character.
4. Petitioner is a legal resident of the United States.
5. Petitioner has resided in and maintained her principal place of abode in South Carolina for more than thirty days before applying for a beer and wine permit and minibottle license.
6. Petitioner has never been cited for any violations of the alcoholic beverage control laws, and she has never had a permit to sell beer and wine or other alcoholic beverages suspended or revoked.
7. Petitioner is over twenty-one years of age.
8. But for the protest filed, DOR would have issued the beer and wine permit and minibottle license.
9. The proposed location is in a commercial area outside of the city limits.
10. There are no churches, schools or playgrounds within close proximity to the proposed location.
11. The location is suitable for the sale of beer and wine and other alcoholic beverages for on-premises consumption.
12. All parties were given notice of the date, time and place of the hearing.
13. The protestants, members of the Pine Valley Homeowners Association, received notice of the hearing by mail on or about August 5, 1998.
14. The hearing was scheduled to commence on September 25, 1998, at 9:30 a.m. and actually commenced at 9:50 a.m.
15. No persons appeared at the hearing to protest the application, nor did any protestants communicate with the court to request a continuance or other wise indicate that they would not be able to appear at the hearing.
16. Upon motion granted, DOR was excused from participation in and appearance at the hearing based upon its assertion that it would have issued the permit and license sought but for the filing of the written protests.

Based upon the foregoing Findings of Fact, I conclude as a matter of law:

1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997).

2. The protestants, members of the Pine Valley homeowners Association, are in default under ALJD Rule 23 for failure to appear at the contested case hearing.

3. Pursuant to ALJD Rule 23, an Administrative Law Judge may dismiss a matter adversely to a defaulting party.

4. "[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).

5. South Carolina Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the issuance of a beer and wine permit. Included among the factors for consideration is the suitability of the location.

1. As trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location 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). Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
2. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
3. While proximity of a residence to a proposed location by itself may be adequate grounds for denial of a beer and wine permit, there is no minimum distance requirement. See S.C. Code Ann. § 61-4-520(7) (Supp. 1997); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
4. Previous suitability is a factor to be considered in determining the suitability of a proposed location. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). There is no evidence that the proposed location is any less suitable now than it was when originally licensed.
5. The proposed location is suitable for the sale of beer and wine and other alcoholic beverages for on-premises consumption.
6. "No person, corporation, or organization for whose premises a license is required pursuant to subarticle 1 of this article may knowingly allow the possession or consumption of alcoholic liquors upon the premises unless a valid license issued pursuant to Section 61-6-1820 has been obtained and is properly displayed." S.C. Code Ann. § 61-6-1800 (Supp. 1997).
7. S.C. Code Ann. § 61-6-20(2) (Supp. 1997) provides:

"Bona fide engaged primarily and substantially in the preparation and serving of meals" means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

1. Since Petitioner will conduct a business bona fide engaged primarily and substantially in the preparation and serving of meals, he will meet the requirements of S.C. Code Ann. § 61-6-1820(1) and S.C. Code Ann. § 61-6-1610 (Supp. 1997) upon being granted a Class "A" restaurant license by DHEC.



2. Petitioner and the proposed location meet the requirements set forth in S.C. Code Ann. § 61-6-1820 for issuance of a minibottle license.
3. The applicant meets all other statutory requirements for the issuance of an on-premises beer and wine permit and minibottle license.

ORDER

IT IS THEREFORE ORDERED that the South Carolina Department of Revenue issue an on-premises beer and wine permit to Petitioner for 1437 Rushmore Drive, Columbia, South Carolina.

IT IS FURTHER ORDERED that the South Carolina Department of Revenue issue a minibottle license to Petitioner for 1437 Rushmore Drive, Columbia, South Carolina, upon the payment of the required fees and the issuance by the Department of Health and Environmental Control of a Class "A" restaurant license.

AND IT IS SO ORDERED.

_________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

October 26, 1998

Columbia, South Carolina