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SC Administrative Law Court Decisions

Cassandra Canales, d/b/a Amari’s Restaurant and More vs. SCDOR

South Carolina Department of Revenue

Cassandra Canales, d/b/a Amari’s Restaurant and More
1315 Edgefield Rd., Aiken, SC

South Carolina Department of Revenue

For the Petitioner: Pro Se

For Respondent/S.C. Department of Revenue: Lynn Baker, Esquire

For the Protestants: Pro Se




This matter comes before the Administrative Law Court (“ALC” or “Court”) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2004), § 61-4-520 (Supp. 2004), and S. C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004), for a contested case hearing. Cassandra Canales, d/b/a Amari’s Restaurant and More (“Petitioner”), seeks an on-premise beer and wine permit.

Protests to the application were filed with the South Carolina Department of Revenue (“Department”). Because of the protests, the hearing was required.

A hearing in this matter was held on January 5, 2005, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with the following Protestants: Bessie Dandy, Willie Mae Green, Sandra Leysath, Patricia A. Price, Arlene J. Smith, Grace and Jackie Smith, and Carol Smith. A copy of the Department’s official file in this matter was placed into evidence without objection. After listening to the testimony and weighing all evidence presented at the hearing, this court finds that Petitioner’s application for an on-premises beer and wine permit should be denied.


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 Protestants.

3.The Petitioner, Cassandra Canales, d/b/a Amari’s Restaurant and More, seeks an on-premise beer and wine permit for the premises located at 1315 Edgefield Road, Aiken County, South Carolina (“location”). The location is in a rural area of Aiken County, South Carolina, outside of the city limits.

4.Cassandra Canales is the owner of Amari’s Restaurant and More, a sole proprietorship.

5.Petitioner is over the age of twenty-one. She has been a legal resident of the State of South Carolina all of her life and has maintained her principal place of abode in the State of South Carolina for the same length of time. She is of good moral character and has never held a license or permit to sell beer, wine or liquor.

6.Notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

7.The location is a full service family restaurant which operates six days a week from 11:00 a.m. to 7:00 p.m., Monday through Saturday. It was opened by Petitioner in October 2004. Petitioner serves southern cuisine with daily specials, and the restaurant is open for lunch and early dinner each day. A large portion of its food is purchased for take-out. Petitioner does not intend to extend the hours of operation of the restaurant nor make it a bar if the permit is granted.

8.There is one billiard table (leased) inside the restaurant. There is not space for any more and no others will be placed or used at the location. There are tables, chairs and booths available to seat approximately forty people inside.

9.Petitioner does provide music from a radio inside the location, but she does not play music outside at the location. There are no juke boxes or loud music inside nor does Petitioner have or plan to have live music inside or outside at the location.

10.Petitioner is assisted in the operation of the restaurant by her mother, Mrs. Frances Hart, her father, William Hart, and a sister, Cathy Hart. Her sister helps with the cooking and performs the day-to-day operation at the restaurant.

11.Petitioner and her immediate family have spent approximately six thousand and no/100 ($6,000.00) dollars to repair and upgrade the location.

12.Petitioner worked as a bar manager for approximately four years at a country club in Aiken and is familiar with the laws and regulations affecting the sale and service of alcoholic beverages in South Carolina. Her sister has worked at various restaurants in the Aiken area, primarily as a waitress. Her mother has not previously worked in a restaurant. However, her father operated a restaurant at this location in 1991 and held an on-premises beer and wine permit for it. Because of pressures from his construction business, he voluntarily closed the restaurant and turned in his beer and wine permit.

13.Petitioner is a graduate of the University of South Carolina and is currently employed as a legislative specialist at Blue Cross and Blue Shield in Columbia where she works Monday through Friday from 8:00 a.m. to 5:00 p.m. She is present at the location for no more than one hour a day Monday through Friday, but works at the restaurant all day on Saturdays. Petitioner lives approximately 30 to 40 minutes from the location. However, her parents and her sister live much closer.

14.Petitioner leases the building from Mrs. Ruthie Williams, who lives in a home located to the rear of the restaurant. There are other residences located across the street (Edgefield Road) and on both sides of the location. En Vogue Salon, Heavenly Child Care Day Care, and another restaurant are also located in close proximity to the location on the same side of Edgefield Road. See sketch prepared by South Carolina Law Enforcement Division Senior Agent Ida L. Dixon dated October 12, 2004.

15.There are several street lights outside the location and one exterior light on the restaurant building. The areas surrounding the restaurant, where patrons can park, are either grass or dirt, and presently, Petitioner is having some gravel put in the parking areas. There is parking available for approximately six vehicles in front of the restaurant and approximately seven vehicles on its left side. If these parking spaces are insufficient, patrons of the restaurant will have to park along Edgefield Road or on the property of other owners close by.

16.Petitioner testified that she will not allow loitering outside the location, that the trash and litter are picked up daily, and that she and her family will, if the permit is authorized, monitor any patron who drinks alcoholic beverages to ensure that they do not become a problem.

17.Many of the Protestants testified at the hearing. Protestants question the suitability of the location, citing concerns for safety, noise, litter and parking problems. Many of them have known the Hart family for many years and believe them to be good and honorable people. However, they have experienced situations in the past when this location, and other nearby locations, were permitted and are fearful of the location being permitted again.

18.Protestant Sandra Leysath is the owner and operator of the Heavenly Child Care Day Care, which is open from 6:00 a.m. to 6:00 p.m.. Ms. Leysath testified that she has 36 children at her business daily. Ms. Leysath testified that she is concerned that the sale of beer and wine by Petitioner will promote violence and robberies in her neighborhood and that Petitioner’s patrons will become intoxicated and then walk and drive vehicles in the neighborhood.

19.Protestant Arlene J. Smith lives across Edgefield Road, approximately 500 feet away from the location. She has rented her home since 1966 and lives there with her 15 year old grandson. Ms. Smith testified that her concern is that the sale of beer and wine at the location will result in fighting, cursing, shootings, the accumulation of trash, and problems with parking and noise.

20.Protestant Patricia Price, a retired school teacher, owns a house behind the location. Her elderly mother also lives near the location on Jack Jones Street. Ms. Price’s home is approximately eight tenths of a mile from the restaurant. She testified that a deadly shooting occurred in the location in the 1980’s and that other shootings have occurred at another nearby restaurant. She also testified that she is concerned about the restaurant’s inability to control the actions of its patrons after they leave the confines of the building.

21.Protestant Carol Smith Morgan is the owner of En Vogue Hair Salon located next to the location. Her salon is open Tuesday through Saturday of each week. She closes as late as 10:00 p.m. most days. Ms. Morgan also objects to the issuance of the permit due to parking and safety concerns. Ms. Morgan is worried that the restaurant may quickly become a night club, and she has experienced problems in the past with patrons parking on her property. She has also experienced at least one drive-by shooting at her business and is concerned about break-ins.

22.Protestant Jackie Smith, the father of Ms. Carol Smith Morgan, lives with his wife, Grace Smith, approximately one thousand feet from the location, on the same side of Edgefield Road. He has lived in the community for over 30 years. He and his wife are also worried that the restaurant may become a night club, about parking problems, shootings, break-ins and overall safety for themselves, their daughter and their neighbors. He noted that neither Petitioner, her parents, nor her sister live in the neighborhood. He believes that they would not want a restaurant that serves beer and wine for consumption on premises this close to their homes either.

23.Protestants Willie Mae Green and Grace Smith also testified as to their safety concerns. Ms. Smith further testified that the community is a close community where lots of widowed women, elderly, and handicapped people live.


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. 2004) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2.S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3.S.C. Code Ann. § 61-4-520 (Supp. 2004) sets forth the requirements for the issuance of a beer and wine permit.

4.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. ABC 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 of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

5.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); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). 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 Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

6.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 181 (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 any 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, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973).

7.Unless there is 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).

8.Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the state’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a permit, is likewise authorized to revoke or suspend the permit for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

9.The neighborhood where this restaurant is located is in a rural area in Aiken County where many elderly and handicapped people make their home. Most have owned or rented their homes for many years. These citizens have previously experienced and suffered through many inconveniences to their property and their personal health and safety. They have endured shootings and a killing in their neighborhood, as well as having to deal with intoxicated persons walking along Edgefield Road and parking on their properties.

This court is concerned that Petitioner will be at the restaurant no more than one hour each day, except for Saturdays. Further, there is a great concern that the limited parking at the location creates a strong potential for patrons to park on adjoining properties. Petitioner’s intention to allow patrons to drink beer or wine while playing billiards creates the potential for them to become under the influence, and if this occurs, the court is concerned that Petitioner and her family will not be able to monitor them properly.

For all of the above reasons, this court finds that the location is not suitable for the issuance of an on-premises beer and wine permit because of these safety, noise, litter, and parking concerns. Allowing individuals to consume beer and wine at this location would have an adverse impact on this community. In making this determination, this court is mindful of the age of the residents who live in this community as well as their limitations and handicaps. The balancing weighs too strongly in favor of denying this permit. Accordingly, I find that the location is not suitable for an on-premises beer and wine permit.


Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application for an on-premises beer and wine permit of Cassandra Canales, d/b/a Amari’s Restaurant and More is DENIED.



Marvin F. Kittrell

Chief Administrative Law Judge

January 11, 2004

Columbia, South Carolina

Brown Bldg.






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