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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Salvador V. Torres and Salvador A. Torres, d/b/a El Nopal vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Salvador V. Torres and Salvador A. Torres, d/b/a El Nopal

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
98-ALJ-17-0024-CC

APPEARANCES:
Michael L. Brown, Esquire

For Petitioners

Protestant: Captain Ken Broom

Cherokee County Sheriff's Department
 

ORDERS:

ORDER AND DECISION

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 1997) for a hearing on the application of Salvador V. Torres and Salvador A. Torres. Petitioners seek an on-premises beer and wine permit for a nightclub located at 205-B Chesnee Highway, outside the city limits of Gaffney, South Carolina.

After timely notice to the parties and protestant, a hearing was held on April 14, 1998, at the Administrative Law Judge Division in Columbia, South Carolina. The protestant of record, Captain Broom, did not move to intervene as a party. Pursuant to its Motion to Be Excused, the Department was excused from appearing at this hearing, and would have granted the permit but for the protest.

The issues considered at the hearing were: (1) Petitioners' eligibility to hold a beer and wine permit; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The application for the on-premises beer and wine permit is hereby granted. FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

Petitioners seek an on-premises beer and wine permit for a nightclub located in a commercially zoned area outside the city limits of Gaffney, South Carolina at 205-B Chesnee Highway, Cherokee County.

Petitioners lease the building that houses the business from Donald Brock. This location held a beer and wine permit and operated as a strip-club from March 1996 through May 31, 1997.

Petitioners also operate a restaurant and grocery store, both of which adjoin the proposed location.

Petitioners are of good moral character. The State Law Enforcement Division completed a criminal background investigation of Petitioners. The SLED report revealed no criminal violations, and the record before this tribunal does not indicate that Petitioners have engaged in acts or conduct that imply the absence of good moral character.

Petitioners are at least twenty-one years of age, U.S. citizens, and citizens of the State of South Carolina. Furthermore, Petitioners have maintained their principal residence in the state for at least thirty days prior to the date of making application for an on-premises beer and wine permit.

Petitioners have not had a beer and wine permit or alcoholic beverage license revoked within two years of the date of their application.

Notice of the application appeared in the Gaffney Ledger, a newspaper of general circulation in the area of the proposed location, once a week for three consecutive weeks, and notice was posted at the proposed location for fifteen days.

The Department does not oppose Petitioners' application and would have issued the permit but for the protest.

Captain Broom cites criminal incidents with the strip-club previously operated at the location, the proximity of residents, and the busyness of the highway on which the business is situated as grounds for denying the permit request.

CONCLUSIONS OF LAW AND DISCUSSION

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

S.C. Code Ann. § 61-2-260 (Supp. 1997) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this case.

S.C. Code Ann. § 61-4-520 (Supp. 1997) establishes the criteria for the issuance of a beer and wine permit.

Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law Judge Division in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

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 permit to sell beer and wine using broad, but not unbridled discretion. See Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

The determination of the suitability of a location is not necessarily a function of geography alone. It involves an infinite variety of considerations related to the nature and operations 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. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

There was not a sufficient evidentiary showing that the present location is unsuitable or that the issuance of an on-premises beer and wine permit would affect residents' safety, create traffic problems, or have an adverse impact on the community.

The denial of a license or permit to an applicant on the ground of unsuitability of location is without evidentiary support when relevant testimony of those opposing the requested license or permit consists entirely of opinions, generalities, and conclusions not supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

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 the issuance of a permit or license is protested is not a sufficient reason by itself to deny the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981).

Petitioners meet all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. Accordingly, the arguments proffered by the protestant do not constitute a sufficient basis on which to deny Petitioners' request.

ORDER

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

ORDERED that the Department of Revenue shall continue processing Petitioners' application for an on-premises beer and wine permit for 205-B Chesnee Highway, Gaffney, South Carolina.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

May 5, 1998

Columbia, South Carolina


 

 

 

 

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