ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court (ALC or
Court) pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2007),
and S.C. Code Ann. § 61-2-90 (Supp. 2007) for a contested case hearing.
Petitioner is seeking an off-premises beer and wine permit for El Rincon Latino.
After proper notice, a hearing was held on July 16, 2008 at the offices of the
ALC in Columbia, South Carolina.
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 proof upon the Petitioner
and the Respondent, I make the following Findings of Fact by a preponderance of
the evidence:
1. Petitioner
seeks an off-premises beer and wine permit for El Rincon Latino (El Rincon),
located at 1318 Remount Rd., North Charleston, South Carolina.
2. Petitioner
has been a resident of the State of South Carolina for approximately ten years.
Petitioner also has not had a permit or license revoked within the last two
(2) years and notice of the application was lawfully posted both at the
location and in a newspaper of general circulation.
3. Alejandro
Gonzalez is the owner of El Rincon. Mr. Gonzalez is retired from the United
States Army. He has owned El Rincon for the past three years. El Rincon is a
convenience store which sells mostly snacks and drinks. It is located in the
corner of a strip mall in a primarily commercial area. There is a Laundromat
next door to the proposed location and a restaurant at the other end of the
strip mall. The store is open Monday through Sunday from 9 a.m. to 9 p.m. Mr.
Gonzalez is at the store all day Monday, Wednesday, and Friday. When he is not
there, Jorge Navarro is the manager.
4. The primary
issue for consideration is the protest to the permit.
W.W. Gregory, Jr., an associate pastor at First Southern Methodist Church, was
the sole Protestant to the issuance of the permit. Mr. Gregory is concerned
that the issuance of a beer and wine permit will lead to an increased amount of
litter on his church grounds. The church is directly across the street from
the strip mall that El Rincon Latino is located in. Because of the problems
with litter, Mr. Gregory has to clean the church yard on Saturday and again on
Sunday morning before the church services begin. He testified that there is a
lot of foot traffic through the church yard and that a lot of beer cans and
bottles are left behind. He is further concerned that the area is a high crime
area and the additional sale of beer and wine will exacerbate the bad behavior
in the area.
While Mr. Gregory’s arguments appear to be based on a genuine
concern for the church and community, in order to deny the permit, there must
be specific evidence of an adverse impact. Though the evidence offered raises
“potential” concerns that the permit may lead to an adverse impact on the
community, the evidence did not establish that the granting of an off-premise
permit would lead to any further littering upon the church property or would
exacerbate the crime in the area. Significantly, the location would be
authorized to sell beer and wine only for off premises consumption in an
area that already has several locations from which the community could conveniently
buy beer and wine in the same manner. It thus appears that permitting the location
would simply allow patrons another choice from which to purchase beer and wine
for off premises consumption, rather than adding a location that would have an
overall adverse impact on the community. However, if a significant change
occurs as a result of Petitioner receiving this permit, the proposed location
would no longer be suitable and the community and/or the Department could
properly bring an action to prohibit the renewal of Petitioner’s permit.
Therefore, I find that Petitioner’s proposed location is suitable for an
off-premise beer and wine permit.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C.
Code Ann. § 1-23-600 (Supp. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.
Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the Court the
responsibilities to determine contested matters governing alcoholic beverages,
beer and wine.
2. S.C.
Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2007) set forth the requirements for
the issuance of a beer and wine permit.
3. Although
"proper location" is not statutorily defined, the Administrative Law
Court is vested, as the trier of fact, with the authority to determine the
fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of
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 upon the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
In determining the suitability of a location, it is proper for this Court to
consider any evidence that demonstrates the adverse effect the proposed
location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant to consider the
previous history of the location. Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198
S.E.2d 801 (1973). Furthermore, 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; Taylor v.
Lewis, 261 S.C. 168.
“A
liquor license or permit may also 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 § 121
at 501 (1981). Nevertheless, 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).
4. Petitioner
meets the statutory requirements for holding an off-premise beer and wine
permit at the proposed location.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that the Department resume processing Petitioner's
application for an off-premise beer and wine permit.
AND
IT IS SO ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
July 23, 2008
Columbia, South Carolina
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