ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter is before the Administrative Law Court (“ALC”) for a final order and
decision following a contested case hearing pursuant to S.C. Code Ann. §§
1-23-310 et seq. (2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and
S.C. Code Ann. § 61-2-260 (Supp. 2007). The petitioner, La Fogata of
Edgefield, LLC, d/b/a La Fogata (“Petitioner” or “La Fogata”), applied for an
on-premises beer and wine permit pursuant to §§ 61-4-500 et seq. and for
a restaurant license to sell liquor by the drink pursuant to §§ 61-6-1600 et
seq. for the location at 725 Augusta Road in Edgefield, South Carolina 29824.
Pastor Robert LaBord and Pastor Elise Ramsey LaBord (“Protestants”) filed a written protest to the Petitioner’s application.
Respondent South Carolina Department of Revenue (“Department”) denied the
application pursuant to § 61-4-525 and § 61-6-1825 due to the receipt of the
Protestants’ valid public protest. The Department stated in the Final Agency
Determination that other than the timely filed protests, the Department
determined that the Petitioner met all of the other statutory requirements.
After
notice to the parties and the Protestants, the court held a hearing on this
matter on March 10, 2008. Both parties and Pastor Robert LaBord appeared at
the hearing. Evidence was introduced and testimony presented. After carefully
weighing all of the evidence, the court finds that the Petitioner’s application
for this location should be granted.
ISSUE
The
only issue in dispute is the suitability of the location. §§ 61-4-520(5)-(6),
61-6-1820; Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C.
138, 276 S.E.2d 308 (1981).
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and taking into consideration the burden of persuasion
by the parties, the court makes the following Findings of Fact by a
preponderance of the evidence.
Evidence
was presented regarding all of the relevant statutory criteria. Notice of the
time, date, place, and subject matter of the hearing was given to all parties
and the Protestants.
The
Petitioner seeks a permit for the retail sale of beer and wine for on-premises
consumption and a license to sell liquor by the drink for the location at 725
Augusta Road in Edgefield, South Carolina 29824. The proposed location is
outside the municipal limits of Edgefield. Notice of the application was
lawfully posted at the location and was published in a newspaper of general
circulation.
Mr.
Abel R. Salinas (“Salinas”) is the sole member of the business seeking the
requested permit and license. Salinas is over the age of twenty-one. The
Petitioner seeks the requested permit and license for La Fogata of Edgefield,
LLC, a Mexican restaurant that opened February 13, 2008.
The
proposed location is in the building of a former Hardee’s restaurant on Augusta
Road, otherwise known as Highway 25. The building has been completely
refurbished and has seating for approximately 68-75 patrons. The area in the
vicinity of the proposed location is substantially commercial consisting of
retail stores, restaurants, convenience stores, and a motel. The restaurant
adjacent to the proposed location and the two nearby convenience stores have
beer and wine permits. There is a church in the area of the proposed location,
but the map prepared by the South Carolina Law Enforcement Division (“SLED”) presented
in the Department’s file indicates a measurement of 594 feet from the proposed
location to the nearest church, Daystar Christian Center.
There
is no evidence that the area has problems with criminal activity or that the
police protection in the area is inadequate. Parking at the proposed location
is adequate.
Gus
Koutsos has been affiliated with La Fogata Mexican restaurants since 1995 and
testified regarding the nature these establishments. There are currently
twelve La Fogata restaurants in South Carolina, all of which have permits to
sell beer and wine and licenses to sell liquor by the drink. There have never
been any alcohol-related problems or complaints at any of the other
establishments. La Fogata is a family restaurant with a lunch and dinner menu
consisting of traditional Mexican cuisine. Each of the restaurants is
generally open from 11:00 a.m. until between 10:30 p.m. and 11:00 p.m.
Pastor
Robert LaBord of Daystar Christian Center testified in opposition to the
application. Reverend LaBord stated that the church has been there for three
years and has imminent plans to commence a local afterschool youth program. Pastor
LaBord expressed concern that alcohol will be served in close proximity to the
children that will be present at the church in the afternoons. He also
testified that he personally measured the distance from the corner of the
church’s property to the corner of La Fogata’s property and obtained a
measurement of 240 feet. Pastor LaBord was unaware that the Pizza Hut located
between the church and the proposed location currently has a beer and wine
permit and has had no concerns regarding that permit.
LAW
Based
upon the foregoing Findings of Fact, the court concludes the following as a
matter of law.
1. Jurisdiction and
Review
Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to §§ 1-23-310 et seq., § 1-23-600(B), and § 61-2-260. “[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). 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).
2. Suitability
of Location
a. Generally
Section
61-4-520 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. See §§ 61-4-520(5)-(6). Additionally, § 61-6-1820
sets forth the basic criteria for the issuance of a liquor license. However, a
liquor license may be denied if the proposed location is not suitable. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276
S.E.2d 308 (1981). Therefore, either a beer and wine permit or a liquor
license may be denied if the location of the business is not a proper one.
b. Factors
in Determining Proper Location
“Proper
location” is not statutorily defined, but 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). 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, 326,
338 S.E.2d 335, 337 (1985); Palmer, 282 S.C. at 249, 317 S.E.2d at 478
(citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)). The
determination of suitability of location is not necessarily solely a function
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, 287 S.C. at
326-27, 338 S.E.2d at 337; Schudel, 276 S.C. at 138, 276 S.E.2d at 308.
Further,
a liquor license or
permit may be properly refused on the ground that the location of the
establishment would adversely affect the public interest, that the nature of
the neighborhood and of the premises is such that the establishment would be
detrimental to the welfare . . . of the inhabitants, or that the manner of
conducting the establishment would not be conducive to the general welfare of
the community.
48 C.J.S. Intoxicating
Liquors § 168 at 366 (2004).
Other
factors may be considered when determining whether a location is proper. For example, a liquor license shall not be granted if
the place of business is within 300 feet (if within a municipality) or within
500 feet (if outside a municipality) of any church, school, or playground. § 61-6-1820(3); § 61-6-120. The Alcoholic Beverages, Beer and Wine regulations
provide specific guidance on how the distance is measured for liquor licenses.
To determine the distance between a proposed location and a church, “the
distance shall be measured from the nearest entrance of the place of business
by following the shortest route of ordinary pedestrian or vehicular travel
along the public thoroughfare to the nearest point of entrance to the grounds
of the church.” 23 S.C. Code Ann. Reg. 7-303 (Supp. 2007). Although the
General Assembly did not provide absolute statutory distance requirements for
beer and wine permits as it did for liquor licenses, the proximity to
residences, churches, schools, and playgrounds may be considered for beer and
wine permits as well. § 61-4-520(6); Smith, 258 S.C. at 504, 189 S.E.2d
at 301. Therefore, the decision as to whether the proximity is improper for a
beer and wine permit must be made on a case-by-case basis resting upon the
peculiar facts of each permit request.
Additionally,
consideration can be given to the impact the issuance of the permit or license
will have on law enforcement. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d
191 (1973); Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C.
451, 211 S.E.2d 243 (1975). Evidence that the granting of a permit will place
a strain upon police to adequately protect the community must be weighed. Moore
v. S.C. Alcoholic Beverage Control Comm’n, 308 S.C. 160, 162, 417 S.E.2d
555, 557 (1992). Denial is appropriate where the public areas surrounding the
proposed location have been the source of constant law enforcement problems or
significant problems with public intoxication. Roche, 263 S.C. at 451,
211 S.E.2d at 243. Another pertinent factor is whether police have been
summoned to the scene on prior occasions when licensed to another party. Schudel,
276 S.C. at 141-42, 276 S.E.2d at 309-10. It is relevant whether the location
is near other locations that have either been a constant source of law
enforcement problems or are locations where young people congregate and
loiter. Palmer, 282 S.C. at 250, 317 S.E.2d at 478.
Similarly,
consideration can be given to whether the location is heavily traveled or
creates a traffic danger. Id. Furthermore, whether the location has in
the recent past been permitted and whether the location is now more or less
suitable than it was in the past is a relevant factor. Taylor v. Lewis,
261 S.C. 168, 198 S.E.2d 801 (1973). Finally, a valid consideration is whether
the surrounding area is substantially commercial. Id.; Byers v. S.C.
Alcoholic Beverage Control Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App.
1984).
Without
sufficient evidence of an adverse impact on the community, a permit or license
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 C.J.S. Intoxicating
Liquors § 166 (2004). Moreover, the denial of a permit or license 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 the facts. Taylor, 261 S.C. at 171, 198 S.E.2d at 802.
c. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds the proposed location to be suitable. The area surrounding the
proposed location is primarily commercial. No evidence was presented of law
enforcement problems either at the proposed location or in the surrounding
area. Parking is adequate.
Applying
the statutory and regulatory instructions as to measurements for liquor
licenses, the proposed location is not within 500 feet of any church, school,
or playground and thus does not violate the statutory prohibition for the sale
of liquor by the drink. SLED’s measurement, which appears to follow the method
prescribed by the applicable regulation, begins at the entrance to the proposed
location along the public thoroughfare to the nearest point of entrance to the
grounds of the church. 23 S.C. Code Ann. Reg. 7-303 (Supp. 2007). This
yielded a distance of more than 500 feet. Even though the measurement by the
Protestant yielded a distance less than 500 feet, the route did not extend to
the entrance of the proposed location, as required by the statutory and
regulatory instructions. Therefore, the distance does not preclude a liquor
license, although the proximity of the proposed location to the church is a
valid consideration.
Additionally,
the court finds that Pastor LaBord’s main concern, though sincere, is simply
too general and speculative to warrant denial of the permit and license
sought. His main concern is the presence of alcohol down the street from a
church afterschool program. However, Pastor LaBord testified that he was
unaware that the restaurant between the church and the proposed location
already has a beer and wine permit. Similarly, there is no evidence that this
family restaurant will have an adverse impact on the surrounding community if
the permit and license are granted.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above, the court finds
that the Petitioner meets all of the statutory requirements for the issuance of
an on-premises beer and wine permit and restaurant liquor by the drink
license. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for an
on-premises beer and wine permit and liquor by the drink license for the
premises located at 725 Augusta Road in Edgefield, South Carolina 29824 in
accordance with § 61-2-80, § 61-4-540, and § 61-6-1820.
IT IS SO
ORDERED.
______________________________________
PAIGE J. GOSSETT
Administrative Law Judge
March 12, 2008
Columbia, South Carolina
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