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). Puerto Vallarta, LLC, d/b/a Puerto Vallarta Mexican Restaurant (Puerto
Vallarta) seeks an on-premise beer and wine permit and liquor by the drink
license for its location at 3207 E-5 N. Pleasantburg Drive, Greenville, South
Carolina.
Respondent South Carolina Department of Revenue
(Department) denied Petitioner’s application for the permit because of a timely
filed protest by R.H. Patterson, Sr.
A
hearing in this matter was held at 11:00 a.m. on Tuesday, March 27, 2007, at
the offices of the Administrative Law Court in Columbia, South Carolina. All
parties appeared at the hearing, along with Protestant R. H. Patterson, Sr.
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 and liquor
by the drink license 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 and liquor by the drink
license for its location at 3207 E-5 N. Pleasantburg Drive, Greenville, South
Carolina (location).
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, Juan Salcido and Jose Mata, Puerto
Vallarta's principals, have not had a permit or license revoked within the last
two (2) years and are of sufficient moral character to receive a beer and wine
permit and a liquor by the drink license. Public notice of the application was
also lawfully posted at the location and in a newspaper of general circulation.
5. The location is situated in a highly commercial
area of N. Pleasantburg Drive in Greenville.
Other businesses exist nearby, including those that have both beer and wine
permits and liquor licenses.
6. 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.
7. The
location was permitted/licensed in the past, and the previously
permitted/licensed establishment recently moved across the street. Mr. Salcido
has operated the restaurant in its current location for approximately four
months without incident. The location is open Monday through Sunday from 10:00
a.m. to 11:00 p.m.
8. Mr. Patterson’s opposition to the issuance of
the permit and license centers on his concern over the general health and
safety of the community. Specifically, Mr. Patterson provided police incident
reports which he believes offers proof of a disparity between the number of
establishments carrying licenses and the number of police officers available to
serve the area. Mr. Patterson feels that the low officer to establishment ratio
enhances the probability of alcohol related incidents.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the
following as a matter of law:
1. Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2006), S.C. Code Ann. §
1-23-600(B) (2006), and S.C. Code Ann. §§ 1-23-310 et seq. (2006).
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 and liquor by the drink license at the location. Although cognizant
of the Protestants’ concerns, I conclude that the proposed location is a proper
one for granting both the permit and the license. I find that the proposed location is suitable for
Petitioner to operate with an on-premises beer and wine permit and liquor by
the drink license 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 and liquor by the drink
license. There has not been a sufficient evidentiary showing that the location
is unsuitable for Petitioner’s proposed beer, wine and liquor sales or that the
issuance of the permit or license 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 and liquor by the drink license to Petitioner upon payment
of the proper fees and costs.
AND
IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative
Law Judge
April 12, 2007
Columbia, South Carolina
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