ORDERS:
FINAL ORDER AND DECISION
This matter is before the South Carolina Administrative Law Judge Division ("Division") pursuant to an application filed by
Charlotte Francis, M.D., owner of This, That 'n' The Other Homeless Ministries, d/b/a This, That 'n' The Other
("Petitioner"). Petitioner made application with the South Carolina Department of Revenue ("Respondent" or
"Department") for an on-premises beer and wine permit and a sale and consumption (minibottle) license. Representatives in
support of, as well as in opposition to the application rendered testimony at the hearing.
After notice to the parties, a hearing was conducted on July 7, 1999, in Columbia, South Carolina. Any issues raised or
presented during the proceeding of this matter that are not specifically addressed in this Order, are deemed denied. ALJD
Rule 29(C).
FINDINGS OF FACT
I make the following Findings of Fact, considering the burden of the parties and Protestants to establish their respective cases
by a preponderance of the evidence and taking into account the credibility of the witnesses:
1. Notice of the time, place, date, and subject matter was given to the parties and Protestants in a timely manner.
2. The Division has personal and subject matter jurisdiction relative to this matter.
3. The Petitioner seeks to obtain an on-premises beer and wine permit, as well as a sale and consumption license for This,
That 'n' The Other Homeless Ministries, d/b/a This, That 'n' The Other, located at 948-950 Harden Street, Columbia, South
Carolina.
4. The applicant met all statutory requirements relative to issuance of an on-premises beer and wine permit, as well as those
of a sale and consumption license, pursuant to S.C. Code Ann. § 61-6-1820 (Supp. 1998).
5. There is no church, school or playground within close proximity to the proposed location.
6. The intended hours of operation for the proposed location are Monday - Saturday, 11:30 a.m. - 10:30 p.m. The
operation is managed by Neil Haynes, husband of Petitioner.
7. This, That 'n' The Other's meal service is two-fold. Lunch and dinner service is provided to the general public at the
restaurant, and the same is provided in a community outreach capacity. The restaurant provides meals to the homeless
patrons of local churches and shelters.
8. Petitioner testified that the proposed location could better compete in the hospitality industry by offering alcoholic
beverages to its restaurant customers. As a result, income is generated to fund the community outreach endeavors.
9. Mr. Haynes testified that there is sufficient parking spaces for its customers, either on the street in front of the building or
across the street in the Food Lion parking lot. Petitioner further testified that he had entered into an agreement withthe
management of Food Lion to share the spaces designated as City property within its parking area.
10. Testimony was offered in support of the application by Jackie Mitchell, who has resided next door to the proposed
location for seventeen (17) years. Mr. Mitchell observed that the restaurant is frequented by favorable clientele. This Court
agrees with this observation, and adopts such as its Finding of Fact.
11. Testimony was offered in protest to the application by: (1) Thomas C. Leitner, Jr., operator of The Sewing Center, 936
Harden Street; and (2) Curtis John Hart, operator of Expected Joy Orthodox Bookstore, 942-1/2 Harden Street.
12. Mr. Leitner testified that he does not object to the restaurant itself, only the intent of its owners to sell alcohol to its
customers. He testified that he cleaned human excrement and urination from the exterior of his business in the past as a
result of the behavior of patrons of the business previously located at the proposed location. He believes alcohol
consumption is the direct cause of that behavior. He further testified of incidents of spillage of liquid and non-liquid trash
into the street and onto the property of neighboring businesses from This, That 'n' The Other and the previous occupant.
13. Mr. Hart testified that his business is a Christian bookstore, and that he resides in his business for financial and security
reasons. His concerns are parking, security, and trash disposal.
14. Mr. Haynes testified that trash from the proposed location is too much for the receptacle provided by the City, and that
all trash is removed from the building at the end of the day, and taken elsewhere.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:
1. The South Carolina Administrative Law Judge Division has jurisdiction in this matter pursuant to S.C. Code Ann. § 61-5-55 (Supp. 1998) and S.C. Code Ann. § 1-23-310 (Supp. 1998) et seq.
2. S.C. Code Ann. § 61-4-525 (Supp. 1998) grants the South Carolina Administrative Law Judge Division the powers,
duties and responsibilities to hear protested and contested case matters governing alcoholic beverages, beer and wine.
3. The Department is authorized to issue a sale and consumption licnese to an applicant that conducts a bona fide business
engaged in the preparation of meals. S.C. Code Ann. § 61-6-1820 (Supp. 1998).
4. To be licensed, the business establishment must meet the criteria of S.C. Code Ann. § 61-6-120. S. C. Code Ann. § 61-6-1820(3) (Supp. 1998).
5. 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 of operations of a proposed business and its impact upon the community
within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
6. Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the statutory
criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not a sufficient reason by itself to deny
the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
7. I conclude that the Petitioner's burden of proof has been met by virtue of meeting all of the statutory requirements for
holding a beer and wine permit and a sale and consumption license at the proposed location. I further conclude that the
proposed location is proper for granting the permit and license with the restrictions and stipulations set forth below.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the Department of Revenue shall issue a beer and wine permit and a sale and consumption license to This,
That 'n' The Other Homeless Ministries, d/b/a This, That 'n' The Other upon the payment of the appropriate fees.
IT IS FURTHER ORDERED that said permit and license shall only be issued by the Department upon execution of an
agreement between Petitioner and the Department relative to the following guidelines governing trash/waste removal. The
original of said agreement shall be forwarded to this Division for filing purposes.
IT IS FURTHER ORDERED that the management of This, That 'n' The Other shall pick up and remove any and all trash
and debris from its location. In addition, management shall clean non-visible and unpleasantly odorous elements from the
location. This shall be done at least twice daily, upon arrival before the business opens and before departure at the close of
business, and as necessary throughout the day.
IT IS FURTHER ORDERED that any violation of the above conditions is considered a violation against the license and
may result in a fine, suspension, or revocation.
AND IT IS SO ORDERED.
_________________________________
Honorable Marvin F. Kittrell
Chief Administrative Law Judge
July 22, 1999
Columbia, South Carolina. |
