ORDERS:
ORDER AND DECISION
This matter comes before the Administrative Law Judge Division on the citation issued against
Ricky Brown d/b/a The Last Outpost for a violation of S.C. Code Reg. 7-19 for not preparing meals
as required by the issuance of a restaurant minibottle license. After notice to the parties, Brown failed
to appear at the hearing on April 13, 1995. He requested a continuance the day before the hearing
on the basis that his witnesses were not available. The request was denied on the basis that it was not
timely after having received thirty days notice and waiting until the last day before requesting the
hearing when he knew that his witnesses were not available.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their cases by a preponderance of the evidence and taking into account the credibility of the
witnesses:
1. Ricky B. Brown holds a restaurant minibottle license for The Last Outpost located on
U.S. Highway 17 South in Myrtle Beach, South Carolina.
2. Pamela Williamson, an agent with the South Carolina Law Enforcement Division,
made a site inspection on July 18, 1994. At the time of her inspection, The Last Outpost did not have
a kitchen, had no food stored on the premises, and did not have any menus. It had been open for two
weeks. As a result of that inspection a warning was issued.
3. Over the next several months, other agents went to the location at the request of
Agent Williamson to attempt to purchase food. No food was served.
4. In August 1994, Agent Williamson made another inspection of The Last Outpost and
again there was no equipment for the preparation of food, no menus, no cold storage equipment other
than a small refrigerator behind the bar for bar items, and no food stored on the premises to be used
in preparation or service.
5. At that time Agent Williamson had a conversation with Mr. Brown in which it was
communicated that the restaurant minibottle license was issued in error and that corrected documents
were sent to the licensing division of the Department so that a private club license could be obtained.
6. An investigation of the licensing division records was conducted which revealed that
the original application was for a restaurant minibottle license and no other documents or applications
had been filed with the Department.
7. On October 24, 1994, a final inspection was made by Agent Williamson. There were
no changes to the location with respect to the preparation and service of food. A citation was issued
at that time for violating the provisions of Regulation 7-19.
CONCLUSIONS OF LAW
1. S.C. Code Ann. § 1-23-600 grants jurisdiction to the Administrative Law Judge
Division to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-1-55 (Supp. 1994) grants to the Division the powers, duties, and
responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages,
beer, and wine.
3. The Government Restructuring Act of 1993 provides that all regulations promulgated
by the Alcoholic Beverage Control Commission effective on the date of the act remain in force until
modified or rescinded by the Department or the SLED. 1993 Act No. 181 §1604.
4. Commission Regulation 7-19(A) provides that a business establishment that applies
for a sale and consumption license pursuant to Section 61-5-20(4) and is not engaged in furnishing
lodging must be equipped with a kitchen that is utilized for the cooking, preparation, and serving of
meals; have readily available to its guests and patrons menus containing a list of various meals and
prices; and prepare for service to customers hot meals ar least once each business day. S.C. Reg. 7-19 (1983). The regulation provides definitions of meals and kitchen.
5. S.C. Code Ann. § 61-5-20(4) (Supp. 1994) prohibits the sale and consumption of
alcoholic liquors and beverages sold in minibottles between certain hours unless the establishment is
a business bona fide engaged primarily and substantially in the preparation and serving of meals or
furnishing of lodging and the business has a license from the Department.
6. "Bona fide engaged primarily and substantially in the preparation and serving of meals"
refers only to business which have a Class A restaurant license and provides facilities for seating not
less than forty persons simultaneously at tables for the service of meals. S.C. Code Ann. § 61-5-10(1)
(Supp. 1994).
7. S.C. Code Ann. § 61-5-50 (Supp. 1994) states the requirements for the issuance of
a minibottle license. Section 61-5-50(1) requires that the applicant conduct business as a bona fide
nonprofit organization or as a business bona fide engaged primarily and substantially in the
preparation and serving of meals as described in Section 61-5-10.
8. It is clear from the evidence and from the applicable law that The Last Outpost fails
to meet the criteria for the issuance of a restaurant minibottle license. It is not engaged primarily and
substantially in the preparation and serving of meals. It does not have adequate facilities in order to
accomplish the statutory requirements. Pursuant the S.C. Code Ann. § 61-5-60 the license may be
revoked if the applicant no longer meets the requirements of Section 61-5-50.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED, that the restaurant minbottle license issued to Ricky B. Brown, d/b/a The Last
Outpost is REVOKED. The license shall be surrendered to the Department in the manner required
by law.
AND IT IS SO ORDERED.
___________________________
ALISON RENEE LEE
Administrative Law Judge
April ____, 1995
Columbia, South Carolina |
