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). 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