ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-80 (Supp. 1998) and S.C. Code Ann. § 1-23-600 (Supp. 1998) for a hearing pursuant to the application of The Green Onion, Inc., d/b/a The Green Onion, Inc. ("Petitioner") for an on-premises beer and wine permit (AI# 124591) at 212 E. Rutherford Street, Landrum, South Carolina.
A hearing was held before the Administrative Law Judge Division in Columbia, South Carolina, on May 4, 1999. Notice of the time, date, place and nature of the hearing was timely given to all parties including the protestants.
The application was formally protested by Representative Robert E. Walker. Also, other protestants were present at the hearing to protest the issuance of the permit without restrictions. The protestants who testified at the hearing were Mr. Doug Brannon, Mr. James Christopher, Mr. Freeman Cook, and Mr. Ray Flynn. None of the protestants wish to be made a party. The protestants objected to the grant of the permit without certain restrictions because of the restaurant’s close proximity to the Landrum First Baptist Church and, also, out of concern for the youth in Landrum. Petitioner, Douglas Michael Rostick, vice-president of The Green Onion, Inc., testified in favor of granting the application request without restrictions.
The South Carolina Department of Revenue took no position as to the grant/denial of the permit and had no representatives at the hearing.
The permit request by the petitioner is granted with certain restrictions.
SUMMARY OF THE TESTIMONY
Mr. Douglas Michael Rostick testified that he and his wife, Carolyn Rostick, are the sole shareholders of The Green Onion, Inc. Mr. Rostick owns 49% of the corporation and Mrs. Rostick owns 51% of the corporation. Their restaurant, located at 212 E. Rutherford Street, Landrum, South Carolina, opened for business on December, 19, 1998.
Mr. Rostick testified that his wife met the requirements of S.C. Code Ann. § 61-4-520 as an applicant for a beer and wine permit for their restaurant. Mr. Rostick testified that his wife was of good moral character, she is 28 years old, and she has not had a beer or wine permit revoked within the last two years. Mr. Rostick also testified that his wife is a legal resident of the United States and was a legal resident of South Carolina and maintained her principal place of abode in South Carolina for at least thirty days before the date of the application for the permit. However, the Rosticks no longer live in South Carolina. Their residence is now in Tryon, North Carolina.
Mr. Rostick further testified that The Green Onion, Inc. is a family-oriented restaurant which operates Tuesday through Saturday between the hours of 11:00 a.m. and 8:00 p.m. Mr. Rostick stated that he and his wife intend for the restaurant to remain a family-oriented establishment. The restaurant is located in the downtown business district of Landrum and is less than 300 feet from the Landrum First Baptist Church.
Mr. Robert E. Walker, a protestant, testified that even though the establishment and the applicants meet the requirements for the beer and wine permit, he is still concerned about the issuance of this permit. He wants certain restrictions to be placed on the permit since the restaurant and the Rosticks are new to the Landrum area.
FINDINGS OF FACT
1. This Division has personal and subject matter jurisdiction.
2. The applicants are seeking an on-premises beer and wine permit for a restaurant at 212 E. Rutherford Street, Landrum, South Carolina.
3. The applicants are of good moral character.
4. The applicants are legal residents of the United States.
5. The applicants were legal residents of South Carolina and maintained their principal place of abode in South Carolina for at least thirty days before the date of the application for the permit.
6. The applicants are over twenty-one (21) years of age and have never had a permit revoked within the two (2) years preceding the date of the filing of this application.
7. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The News Leader, a newspaper of general circulation in the local area where the applicant proposes to engage in business.
8. Notice of the application has been given by displaying a sign for a minimum of fifteen days (15) at the site of the proposed location.
9. The applicants intend to own, operate, and manage the location as a family-oriented restaurant, not as a bar or sports bar.
10. The applicants intend to operate the restaurant between the hours of 11:00 a.m. and 8:00 p.m., Tuesday through Saturday.
11. The Landrum First Baptist Church is located less than 300 feet from the restaurant.
12. There are no juke boxes, video machines or pool tables at the location nor do the applicants have live bands or live music.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 1998) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-4-525 (Supp. 1998) grants to the Administrative Law Judge Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. Section 61-4-520 (Supp. 1998) sets forth the requirements for the issuance of a beer and wine permit which provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1. The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.
2. The retail applicant is a legal resident of the United States, has been a legal resident of this Sate for at least thirty days before the date of application, and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.
3. The wholesale applicant is a legal resident of the United States and has been a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application or has been licensed previously under the laws of this State.
4. The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.
5. The applicant is twenty-one years of age or older.
6. The location of the proposed place of business of the applicant is in the opinion of the department a proper one.
7. The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches.
8. Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business.
8. Notice has been given by displaying a sign for fifteen days at the site of the proposed business.
4. The applicant meets all the statutory requirements set forth above and has made an adequate showing on each of the above grounds for issuance of the permit. However, Mr. Rostick stated that he and his wife are temporarily residing in Tryon, North Carolina, which is only a short distance from Landrum. To comply with the spirit of the statute set forth above, I strongly encourage Mr. and Mrs. Rostick to find a permanent residence in the State of South Carolina.
5. Although "proper location" is not statutorily defined, broad discretion is vested in the Division 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 a 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. Ronald F. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (S.C. Ct. App. 1984).
7. S.C. Code Ann. § 61-4-520 (Supp. 1998) states that when the Department of Revenue determines that application meets the requisite qualifications and conditions, that the applicant is a fit person to sell beer or wine, and the location of the proposed place of business is a proper one, the department must issue a permit to the applicant upon payment of the prescribed fee.
8. The determination of suitability of a location is not necessarily a function solely of geography. It involves 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. 335 (1985).
9. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).
10. S.C. Code Ann § 61-6-120 (Supp. 1998) states that the Department shall not issue certain licenses to a place of business within a certain distance of a church, school or playground; however, locations for which beer and wine permits are requested are not subject to those specific restrictions.
11. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to the granting of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E. 2d 801 (1973). 12. It is concluded that the applicants meet all of the statutory requirements for holding a retail beer and wine permit and accordingly, I conclude that the proposed location is a proper one for granting the beer and wine permit subject to the applicants signing a written agreement with the Department of Revenue which is further described in the Order.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the application of Carolyn E. and Douglas M. Rostick for an on-premises beer and wine permit at 212 E. Rutherford Street, Landrum, Spartanburg County, South Carolina be granted, with the following restrictions and conditions, upon the applicants signing a written agreement to be filed with DOR to adhere to the stipulations set forth below:
1. The hours of operation at the location shall begin at 11:00 a.m. and end not later than 10:00 p.m., Tuesday through Saturday; provided further, if the applicant decides to open the restaurant for business on Sundays or Mondays, the hours of operation shall be the same on those days.
2. No pool tables or loud music that can be heard outside the restaurant will be allowed at the location.
3. The restaurant shall retain its identity as a family-oriented restaurant.
IT IS FURTHER ORDERED that a violation of any one of the above conditions is considered a violation against the permit and may result in a fine, suspension, or revocation.
IT IS FURTHER ORDERED that the Department of Revenue issue the permit upon payment of the required fees and costs by the applicants.
AND IT IS SO ORDERED.
________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
May 5, 1999
Columbia, South Carolina
| 
