ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division ("ALJD") pursuant to S.C. Code Ann. § 61-4-520 (Supp.
1998) and 23 S.C. Code Ann. Regs. 7-90 (1976) following the Petitioner's request for a contested case hearing. The
Petitioner, Giannone Importing, Inc. d/b/a New York Style Italian Deli, seeks an on-premises beer and wine permit. After
the Protestants filed written protests with the South Carolina Department of Revenue ("DOR"), and upon the Petitioner's
request, this matter was transmitted by DOR to the ALJD for a hearing. A hearing was held on January 18, 2000 at the
Administrative Law Judge Division in Columbia, South Carolina.
DISCUSSION
Protestant Frank Bartolomeo was the only Protestant to testify. His testimony primarily addressed the lease and
sublease of the proposed location. Protestant Bartolomeo insists the Petitioner is not properly and legally on the premises
and that the Petitioner has violated the terms of the lease as well as building codes and zoning ordinances. Protestant
Bartolomeo states that these allegations are evidence of the Petitioner's lack of character and dictate that the requested
permit be denied.
Protestant Bartolomeo challenged the suitability of the location because, according to him, the distance between the
building and the highway is 23 feet and is too narrow to be used by intoxicated drivers.
FINDINGS OF FACT
Having carefully considered the testimony and the arguments, and taking into account the credibility of the evidence, I find
by a preponderance of the evidence:
1. The Petitioner, Giannone Importing, Inc., d/b/a New York Style Italian Deli, seeks an on-premises beer and
wine permit for an establishment located at 5223 North Kings Hwy., Myrtle Beach, South Carolina, in Horry County.
2. Prior to the hearing, DOR moved to be excused from participation in the hearing. In their motion, DOR
indicated that it does not oppose the Petitioner's application and would have granted the permit but for the protests. The
motion was granted.
3. The parties and the Protestants received notice of the time, date, place, and subject matter of this hearing.
4. The Protestants are the owners of the building. Their predecessor in interest, Jimmy P. Jordan, leased the
premises to Rick Baumann. Mr. Baumann sub-leased the premises to Giovanni Giannone.
5. The proposed location is not currently licensed. It was, however, licensed in the name of Rick Baumann
d/b/a Uptown Seafood, Inc. for off-premises beer and wine from approximately 1993 through 1999. Jimmy P. Jordan owned
the property in 1993 when Baumann first applied for a beer and wine license. No one protested that application. There were
no violations of the license.
6. The State Law Enforcement Division ("SLED") completed a criminal background investigation of the
Petitioner. SLED's report revealed no criminal violations.
CONCLUSIONS OF LAW
Based on these Findings of Fact, I conclude:
1. The ALJD has subject matter jurisdiction in this matter pursuant to Chapter 23 of Title 1 of the 1976 Code,
as amended.
2. S.C. Code Ann. § 61-4-520 (Supp. 1998) provides that an applicant for a beer and wine permit must be "of
good moral character."
3. Whether or not Petitioner is properly and legally on the premises; has defaulted on the lease; has violated the
terms of the lease; or has violated building codes or zoning ordinances are issues to be addressed by another tribunal. In
fact, at least some of the aforementioned issues are presently pending in another tribunal, and until these issues are resolved,
I cannot adjudge, as Mr. Bartolomeo desires, that the Petitioner lacks the moral character as required by S.C. Code Ann. §
61-4-520 (Supp. 1998)
4. Without further evidence, I cannot conclude that the 23 feet between the building and highway would render
the location unsuitable.
5. Based on the Findings of Fact and Conclusions on Law as set forth herein, the Petitioner's application for an
on-premises beer and wine permit must be granted.
ORDER
THEREFORE, DOR shall continue processing the Petitioner's application for an on-premises beer and wine permit for the
establishment located at 5223 North Kings Hwy., Myrtle Beach, South Carolina.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
January 26, 2000
Columbia, South Carolina |
