SC Administrative Law Court Decisions

known as Mi Rinconcito Criollo, located at 1701 Percival Road, Columbia, South Carolina.

2.                  Notice of the application was lawfully posted for fifteen days at the location, and

notice of the application also ran in The Star, a newspaper of general circulation in the area. The protest of Raymond House was timely received by the Department.

3. The Petitioner is a legal resident of the State of South Carolina and is employed

by the South Carolina Department of Corrections.

4. The Petitioner has no criminal record and is of sufficient moral character to

receive a beer and wine permit.

5. The location has been previously licensed, although the Petitioner has never held a license. Petitioner plans a restaurant with tropical food. The location would be open daily and would close by 8 PM. The restaurant seats approximately 40—45 people and has parking spaces for about 20 cars. There is sufficient light inside and outside the restaurant. The Petitioner has removed a pool table from the restaurant to emphasize that the location is not a “bar.”

6. Two other witnesses testified that the restaurant has good food and a pleasant atmosphere. It is not a place to “hang out” and drink. The Spanish tradition is to have a glass of wine with dinner and this location would allow that.

7. The Protestant has concerns about the number of alcohol locations in the area. He testified that he has no problems with Ms. Crespo personally and no concerns about the effect on traffic in the area. His primary goal is to minimize the number of licensed premises near his neighborhood which he testified includes 850 homes.

CONCLUSIONS OF LAW

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

1. The South Carolina Administrative Law Court has jurisdiction in this

matter pursuant to S.C. Code Ann. §61‑2‑260 (Supp. 2005).

2. The factual determination of whether or not an application is granted or denied is

usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).

3. The applicant has complied with all the provisions of S.C. Code Ann. §61‑4‑520

regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61‑4‑520(6) and (7).

4.                  Licenses and permits issued by the State for the sale of beer, wine, and liquor are

not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are satisfied. Because the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is also authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

5. 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).

6. 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 a beer and wine permit using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). It is also the fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

7. Although “proper location” is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a location is not necessarily a function solely of geography. 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). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself upon which the location may be found to be unsuitable and a license denied. Byers v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). The Protestant did not present any specific incident reports dealing with Mi Rinconcito Criollo or Ms. Crespo.

9. Most of the Protestant’s arguments against the granting of the license sought herein are that the neighborhood has sufficient alcohol outlets. However, an aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of an application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (1981).

            The Department of Revenue, which is the governmental body charged with

regulating and enforcing violations concerning permits and licenses involving the sale of beer and wine, did not object to the granting of a permit in this case. I find that this location is suitable for the on‑premises sale of beer and wine.

            Although the concerns of the Protestant are understandable, and the witness

exhibited great credibility in his opposition to the location, his arguments were not directed to any specific problems with Petitioner’s location. There were neither concerns about traffic nor any specific problems with drinking and driving. I find that this location shall be permitted.

ORDER

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

ORDERED that the Petitioner's application for an on‑premises beer and wine permit at Mi Rinconcito Criollo, 1701 Percival Road, Columbia, SC is GRANTED upon payment of any required fees and costs by the Petitioner to the Department.

AND IT IS SO ORDERED.

__________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

May 9, 2006

Columbia, South Carolina