SC Administrative Law Court Decisions

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