South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Brick Street Café, Inc vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Brick Street Café, Inc

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0004-CC

APPEARANCES:
Petitioner & Representative:
Brick Street Café, Inc., Joseph S. Lyles, Esquire

Respondent & Representative:
South Carolina Department of Revenue, Dana R. Krajack, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

I. Introduction


Brick Street Café, Inc. (Café) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit and a sale and consumption (minibottle) license for a restaurant at 315 Augusta Road, Greenville, South Carolina. No protests were filed by any surrounding neighbors and none were filed by local law enforcement. However, DOR denied the beer and wine permit since the president of the corporation, Sarah Wilson (Wilson or principal officer), lacks good moral character and further denied the minibottle license since the location violates the statutory distance requirement of being within 300 feet of a school.


Café’s challenged to DOR’s determination has resulted in this contested case before the Administrative Law Court under S.C. Code Ann. §§ 61-2-260 (Supp. 2003), 1-23-600(B) (Supp. 2003) and 1-23- 310 (Supp. 2003). The evidence and law require denying the mini-bottle license but granting the beer and wine permit with restrictions.


II. Issues

1.Is the distance from the Café to a nearby school 300 feet or less so as to deny the requested mini-bottle license?

2.Does the principal officer of the Café lack good moral character so as to deny the requested beer and wine permit?



III. Analysis


A. Minibottle License


1. Findings of Fact


Based on the preponderance of the evidence, the following findings of fact are entered:


The location address for which the minibottle license is requested is 315 Augusta Street, Greenville, South Carolina. In processing the application, an investigating agent from SLED made measurements and drew a map generally depicting the immediate area of the proposed location. The map and measurements establish that Greenville High School is across the street from the Café. Beginning at the front door of the Café and following the shortest route of ordinary pedestrian movement, one travels parallel to Augusta Road and then crosses the road at Vardry Street to arrive at a gate in a fence that marks the school grounds. The distance covered from the Café’s front door to the gate entering the school property is 236 feet.


The gate is often locked. However, the gate is on occasion unlocked and used by the school to allow access to and egress from the school grounds. In particular the gate is used by students and others to gain access to a sign near the gate with the sign used by the school to advertise school activities.


B. Conclusions of Law


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


Under S.C. Code Ann. § 61-6-120 (Supp. 2003), no minibottle license to be used within a municipality can be issued if the proposed location is within 300 feet of a school. The distance must be measured by beginning at the entrance to the proposed location and then “following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare [to] the nearest point of the grounds in use as part of such . . ., school.” Id. Here, beginning at the front door of the Café and following the shortest route of ordinary pedestrian movement, one travels parallel to Augusta Road and then crosses onto Vardry Street to arrive at a gate in a fence that marks an entrance to the school grounds. The distance covered is 236 feet.


The gate reached within the 236 feet is in use and provides access to the campus of Greenville High School. While the gate is often locked, nonetheless, the gate is unlocked as needed and is used by the school to allow access to and egress from the school grounds. Specifically, the gate is used by students and others to gain access to a sign near the gate with the sign used by the school to advertise school activities. Accordingly, no minibottle license may be granted to Café since the proposed location is within 300 feet of a school.



B. Beer and Wine Permit


1. Findings of Fact


Based on the preponderance of the evidence, the following findings of fact are entered:


Wilson began her operation of the Augusta Road location as a sole proprietor obtaining her beer and wine permit on November 4, 1998. That permit was renewed on December 1, 1999 and expired on November 30, 2001. The permit was renewed again on December 1, 2001 and was set to expire on November 30, 2003. However, a change in ownership from a sole proprietorship to a corporation known as the Brick Street Café, Inc., produced a new application received by DOR on September 5, 2003 with that application being the subject of the instant case.


No evidence shows any violations of any beer and wine statutes at the location while under Wilson’s management. Likewise, no evidence exists of any complaints from members of the public or law enforcement officials in the area.


While no violations occurred on the premises, SLED’s investigation established that Wilson was charged with a DUI on August 17, 1999 and with a second DUI on August 6, 2001. In both instances she pled guilty and paid a fine. The circumstances surrounding the DUIs were similar since in each case Wilson received upsetting news related to her business. As a result, while on the premises but outside of business hours, she consumed a sufficient amount of wine to cause intoxication and the resulting charges for DUI.


As a result of her second DUI, Wilson enrolled in and successfully completed a Drug Safety Action Program during October 2003 and specifically participated in an alcohol Risk Reduction Program. The counselor for the program found no evidence of alcohol abuse during the prior twelve months. Further, according to the counselor, by the conclusion of the program, Wilson had “lowered her DUI risk.”


Further, despite the DUI convictions, work associates and individuals knowledgeable of Wilson’s character expressed views that she has good moral character. Wilson allows the facilities of the restaurant to be utilized by charity organizations and contributes gift certificates to their efforts. In addition, she is the mother of three and actively involved in the schools attended by her children.


2. Conclusions of Law


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


The only dispute involving the beer and wine application is DOR’s assertion that denial of the permit is required since the principal officer and employee of the Brick Street Café lacks good moral character. Footnote See S.C. Code Ann. § 61-4-520 (Supp 2003) (which requires that “[t]he 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.”). DOR’s premise is that good moral character is lacking since the principal officer was charged with a DUI on August 17, 1999 (to which she pled guilty) and was charged with a second DUI on August 6, 2001 (to which she also pled guilty).


Unlike some jurisdictions, South Carolina does not have a statute specifically denying a beer and wine permit to one having a DUI conviction. See e.g Sanchez v. City of Caldwell, 20 P.3d 1 (Idaho 2001) (where an ordinance denied a beer or wine permit to anyone who, within the past five years, had been convicted of driving under the influence of alcohol, drugs, or other intoxicating substances). Rather than a specific prohibition, South Carolina asks a more generic question of whether “the applicant is a fit person to sell beer or wine.” S.C. Code Ann. § 61-4-540 (Supp. 2003). In addition, in a more narrow frame of reference than a “fit person,” the applicant must have “good moral character.” S.C. Code Ann. § 61-4-520(1) (Supp. 2003).


In applying these criteria, a DUI conviction presents a significant hurdle for one seeking a beer and wine permit since a permit “may be refused a person who has previously been convicted of a crime or crimes, particularly a violation of the liquor laws. 48 C.J.S. Intoxicating Liquors § 135b.” Wall v. South Carolina Alcoholic Beverage Control Commission, 269 S.C. 13, 235 S.E.2d 806 (1977) (where an applicant was denied a beer and wine permit based in part on the applicant’s criminal record of three violations of liquor laws, one of which was a DUI conviction). Here, a permit is granted but only because the totality of the circumstances shows a meaningful reformation by Wilson with that reformation coupled with a restriction on the permit. See 48 C.J.S. Intoxicating Liquors § 105 (1981) (explaining that “consideration must be given to the circumstances of any conviction record as well as to the extent to which rehabilitation has occurred.”). Footnote


First, other than the DUI convictions, absolutely no evidence shows any other indication of a lack of good moral character. On the contrary, all of the testimony and admitted evidence from work associates and individuals knowledgeable of Wilson’s character show that Wilson has good moral character. As examples, she allows charitable organizations to utilize the facilities of the restaurant and contributes gift certificates to their efforts. Further, as the mother of three, she is active in her community and in the schools attended by her children. Therefore, beyond the DUI convictions, no evidence shows a lack of good moral character.


Second, the view of one knowledgeable in drug and alcohol dependency conditions and habits presents a meaningful basis upon which to evaluate the future propensity of an applicant to abuse alcohol. See In re Ogilvie, 623 N.W.2d 55 (S.D. 2001). (“A drug and alcohol counselor, Ms. JoSee Suess, examined Ogilvie as to his propensity towards substance abuse [and] [h]er expert opinion dispelled any concern the Board had of Ogilvie's drinking or drug use.”). Here, Wilson’s counselor found no evidence of alcohol abuse during the prior twelve months and concluded that Wilson has “lowered her DUI risk.” Thus, the evidence shows a low probability that future DUIs will occur.


However, to ensure that vigilance will be exercised by Wilson in her future dealing with alcohol, a restriction is imposed on the issuance of this permit: Footnote

Any conviction for a DUI against Sara Brent Wilson on or after the issuance date of this permit shall constitute a violation of this permit, and such a violation shall result in the immediate revocation of this permit.


IV. Order


Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:


The on-premises beer and wine permit sought by the Brick Street Café, Inc. is granted but only with the restriction stated above. Further, the sale and consumption (minibottle) license is denied.


AND IT IS SO ORDERED.


_________________________________

RAY N. STEVENS

Administrative Law Judge


Dated: May 12, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court