ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC
or Court) for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp.
2006) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2006). Pedro Villena, d/b/a Villena Restaurant Try Me (Pedro Villena) seeks an
on-premise beer and wine permit for its location at 606 Gillian Avenue,
Greenwood, South Carolina.
Respondent South Carolina Department of Revenue
(Department) denied Petitioner’s application for the permit because of a timely
filed protest by Reverend Ricky Syndab of the Morris Chapel Baptist Church.
A
hearing on this matter was held at 10:00 a.m. on Monday, April 16, 2007 at the
offices of the Administrative Law Court in Columbia, South Carolina. All
parties appeared at the hearing, along with Protestant Rev. Ricky Syndab.
After
listening to the testimony and weighing all evidence presented at the hearing,
this Court finds that Petitioner’s on-premises beer and wine permit shall be granted.
FINDINGS OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by
the parties, I make the following Findings of Fact by a preponderance of
evidence:
1.
The ALC has personal and subject matter jurisdiction.
2.
Notice of the time, date, place and subject matter of the hearing was timely
given to all parties and the Protestants.
3.
The Petitioner seeks an on-premise beer and wine permit for its location at 606
Gillian Avenue, Greenwood, South Carolina.
4. The qualifications set forth in S.C. Code
Ann. § 61-4-520 (Supp. 2006) concerning the residency and age of the applicant
are properly established. Furthermore, Pedro Villena has not had a permit or
license revoked within the last two (2) years and is of sufficient moral
character to receive a beer and wine permit. Public notice of the application
was also lawfully posted at the location and in a newspaper of general
circulation.
5. Pursuant to S.C. Code Ann. § 61-3-440 (Supp. 2006), there
are no churches, schools, or playgrounds within the minimum required distance
of the location.
6. The
Petitioner assures that alcohol will be sold with food only and that no music
or game machines will be permitted at the location. The location has undergone
various improvements including the placement of additional lighting in parking
areas. The Petitioner has operated the restaurant in its current location for
approximately seven (7) months without incident or complaint. The location is
open Monday through Sunday from 10:00 a.m. to 10:00 p.m.
The
Petitioner further assures that alcohol will not be sold to underage patrons.
Petitioner expresses no objection to the idea of having alcohol related
training for his employees.
7. Rev. Syndab’s opposition to the issuance of the
permit centers on his concern for the general safety of his parishioners. Specifically,
Rev. Syndab feels that his parishioners and their children would be endangered
and intimidated by would-be intoxicated patrons from Mr. Villena’s
establishment. He indicated that the sale of alcohol in the area would not be
conducive to his church’s goal of fostering of a family-friendly atmosphere
within the community. Rev. Syndab noted that his church was within 300-400 yards
of the location and that Mr. Villena’s restaurant abuts church-owned land. Lastly,
Rev. Syndab indicated that his church unanimously voted against the proposed permit.
8. Although not recognized as an official protestant, Mr.
Gonza Bryant was also afforded an opportunity to voice his concerns about the
proposed permit. As a member of Morris Chapel Baptist Church, Mr. Bryant is
primarily concerned about the hours of operation of Mr. Villena’s restaurant
and how they coincide with various church events. Furthermore, Mr. Bryant
believes that there may not be enough parking spaces to safely support the
needs of Mr. Villena’s restaurant. Lastly, Mr. Bryant indicated that he is
worried that the sale of alcohol in the area would only enhance the drug
related issues that currently plague the area.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the
following as a matter of law:
1. S.C.
Code Ann. § 1-23-600 (Rev. 2005) grants jurisdiction to the Administrative Law
Court to hear contested cases under the Administrative Procedures Act.
Additionally, S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the Administrative
Law Court the responsibilities to determine contested matters governing
alcoholic beverages, beer and wine.
2. “[T]he
issuance or granting of a license to sell beer or alcoholic beverages rests in
the sound discretion of the body or official to whom the duty of issuing it is
committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C.
246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C.
Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3. The
weight and credibility assigned to evidence presented at the hearing of a
matter is within the province of the trier of fact. See S.C. Cable
Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C. 216, 222, 417
S.E.2d 586, 589 (1992). Furthermore, a trial judge who observes a witness is in
the best position to judge the witness’s demeanor and veracity and to evaluate
the credibility of his testimony. See, e.g., Woodall v. Woodall,
322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co.,
300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
4. S.C.
Code Ann. § 61-4-520 (Supp. 2006) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the
proposed location be a proper and suitable one. S.C. Code Ann § 61-4-520(6)-(7)
(Supp. 2006).
5. Although
“proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of a particular location
for the requested permit. See Fast Stops, Inc. v. Ingram, 276
S.C. 593, 281 S.E.2d 118 (1981).
6. The
determination of suitability of location is not necessarily a function solely
of geography. Rather, 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.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
7. In
determining whether a proposed location is suitable, it is proper for this
tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage
Control Comm'n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972)).
8. The factual determination of whether or not an
application is granted or denied is usually the sole prerogative of the
executive agency charged with rendering that decision. Palmer v. S.C.
Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.
1984). As the trier of fact, an administrative law judge is authorized to
determine the fitness or suitability of the proposed business location of an
applicant for permits and licenses to sell alcoholic beverages using broad but
not unbridled discretion. Byers v. S.C. Alcoholic Beverage Control Comm'n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
9. Without
sufficient evidence of an adverse impact on the community, the application must
not be denied 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).
10.
I conclude that the Petitioner has met its burden of proof in showing
that it meets all of the statutory requirements for holding an on-premises beer
and wine permit. Although cognizant of the Protestants’ concerns, I conclude
that the proposed location is a proper one for granting the permit. I find that the proposed location is suitable for
Petitioner to operate with an on-premises beer and wine permit and that
Petitioner’s operations will not be detrimental to the welfare of the
surrounding community.
11. In reaching a
decision in this matter, this tribunal is constrained by the record before it
and by the applicable statutory and case law. Here, Petitioner meets all of the
statutory and regulatory criteria enacted by the South Carolina General
Assembly for the issuance of a beer and wine permit. There has not been a
sufficient evidentiary showing that the location is unsuitable for Petitioner’s
proposed beer and wine sales or that the issuance of the permit would have an
adverse impact on the surrounding community.
ORDER
Based upon the above Findings
of Fact and Conclusions of Law, it is hereby:
ORDERED that the
Department resume processing Petitioner's application and issue an on-premise
beer and wine permit to Petitioner upon payment of the proper fees and costs.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative
Law Judge
April 18, 2007
Columbia, South Carolina
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