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. §
1-23-600(A) (as amended by 2008 S.C. Act No. 334) and S.C. Code Ann. § 61-2-260 (Supp. 2007). The petitioner, Lucca, LLC, d/b/a
Trattoria Lucca (“Petitioner” or “Lucca”), applied for an on-premises beer and
wine permit pursuant to §§ 61-4-500 et seq. for the location at 41
Bogard Street in Charleston, South Carolina, 29403. Reverend Joseph Swinton,
Jr., on behalf of Francis Brown AME Church, and Edward W. Brown, Rosemary
Jenkins, Lorraine Graham, and Pamela Wright of the Board of Trustees for the
Francis Brown AME Church (“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 due to the receipt of the Protestants’ valid public protest. The
Department determined that, other than the timely filed protest regarding the
suitability of the location, the Petitioner met all of the statutory
requirements.
After
notice to the parties and the Protestants, the court held a hearing on this
matter on August 18, 2008. Both parties and the Protestants 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).
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 for the location at 41 Bogard Street in Charleston, South Carolina,
29403. The proposed location is inside the municipal limits of Charleston. It
is located at the intersection of Bogard and Ashe Streets, just north of Spring
Street. Notice of the application was lawfully posted at the location and was
published in a newspaper of general circulation.
Mr.
Ken Vedrinski (“Vedrinski”) is the sole member and the chef of the business
seeking the requested permit, Lucca. Vedrinski is over the age of twenty-one
and has resided in South Carolina for thirteen years. Vedrinski has no
criminal record and has never had a beer and wine permit or liquor license
revoked.
The
Petitioner seeks the permit for an upscale neighborhood Italian restaurant that
can seat up to forty-nine people. The area immediately surrounding the
proposed location is primarily residential and the nearest church, Francis
Brown AME Church, is located 175 feet from the proposed location.
Vedrinski
offered testimony about the proposed location. When Vedrinski first signed a
lease for the proposed location, the building had been vacant for some time and
was in disrepair. He stated that it was falling down with bats infesting the
upper floor. Since then he has undertaken substantial renovations, investing
$250,000 of his own funds to upfit and renovate the interior of the
building for an
upscale restaurant. The proposed location has two parking spots designated for
its use and patrons may use available street parking. However, Vedrinski
envisions that this restaurant will primarily serve the local neighborhood
residents. The prices on a sample menu include individual menu items ranging
from $9.00 to $32.00 as well as tasting menus ranging from $62.00 to $89.00 per
person. Lucca will be open Tuesday through Sunday for dinner only, opening
each night at 5:30 p.m. and closing at 10:00 p.m. on Tuesday through Thursday
and at 11:00 p.m. on Friday and Saturday.
To
open this restaurant in a residential area, Vedrinski first had to receive a
zoning variance from the City of Charleston. Vedrinski stated that no one
appeared at the zoning hearing to challenge the variance; rather, several
residents from the community attended in support of his restaurant. The City
of Charleston ultimately granted Vedrinski the zoning variance to establish
this restaurant at 41 Bogard Street.
The
Protestant offered the testimony of Joseph Grant, the past pro tempore trustee for Francis Brown AME Church, in opposition to the application.
Francis Brown AME Church, established in 1901, is located 175 feet from the
proposed location and considers itself a central part of the community by providing
worship and congregation. Grant testified that the Protestants’ primary
concern is parking. Grant stated that he does not question Vedrinski’s
professionalism or quality as a chef, but that his concerns rest with traffic
and parking issues. Grant stated that the streets surrounding the proposed
location and the church are narrow two lane roads with on-street parking.
Grant believes that the addition of a restaurant to this area will increase
traffic and diminish the parking available for the church members as well as
local residents. Grant also expressed concerns relating to the proximity of
the proposed location to Francis Brown AME Church. Grant feels that 175 feet is
too close of a distance between a church and an establishment serving alcohol
and that, between the serving of alcohol and potential increased traffic, Lucca
would adversely impact the community.
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 § 1-23-600(A) (as amended by 2008 S.C. Act No. 334) 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).
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. 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, 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. § 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 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
v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308
(1981). 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 application
must not be denied if the statutory criteria are satisfied. The fact that the
issuance of a permit 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 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 court is mindful of the
proximity of Francis Brown AME Church to the proposed location and the fact
that the area immediately surrounding the proposed location is predominantly residential.
However, the Protestants’ concerns do not rise to the level of warranting
denial of the permit sought. While proximity to churches and residents may be
considered in determining whether to issue a beer and wine permit, there is
insufficient evidence that Lucca will adversely impact the community. In fact,
based on the testimony the court finds that, overall, Lucca may be expected to
have a positive impact on the community by providing a desirable neighborhood fine
dining establishment. This is an upscale restaurant with an accomplished chef
who plans primarily to provide quality food to local residents. There is no
evidence that the patrons will disrupt the community or the nearby church. Nor
was any evidence presented that the area is crime-ridden or inadequately
protected by local law enforcement. Furthermore, the court observes that in
determining whether to grant a zoning variance, the City of Charleston generally
considers parking issues and, notwithstanding the limited parking, it granted
Lucca a zoning variance.
Therefore,
the court finds that, despite its proximity to the church, the proposed nature
and operation of the business at this time renders the location a proper one.
The court finds that the proposed location will assist revitalization of this
area and will have an overall positive impact on the community.
The
court encourages the Petitioner to prevent patrons from loitering outside of
the proposed location and to be a good neighbor to the church and surrounding
residents. The court would further remind the Petitioner and the Protestants
that if the Petitioner does not comply with the alcoholic beverage laws, his
permit can be suspended or revoked. See § 61-4-580.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above, the Petitioner meets
all of the statutory requirements for the issuance of an on-premises beer and
wine permit. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for an
on-premises beer and wine permit for the premises located at 41 Bogard Street
in Charleston, South Carolina, 29403 in accordance with § 61-4-540.
IT
IS SO ORDERED.
__________________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
August 19, 2008
Columbia, South Carolina
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