ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004) for a contested case hearing. Diner on Main, Inc., d/b/a Diner on Main (“Petitioner”), seeks an on-premise beer and wine permit and a minibottle license for a family restaurant to be located at 18 North Main Street, Suite 100, Greenville, South Carolina.
Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for the permit and license because of the protest filed by a neighboring resident concerned with the increased growth of the surrounding area, the number of establishments already serving alcohol in the surrounding area, and the increased crime potential.
An expedited hearing in this matter was held on August 31, 2005, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with Protestant Anthony Conway. On August 29, 2005, Anthony Conway, the sole protestant in this case, had filed a “motion to intervene” with this Court. Anthony Conway was granted leave to intervene by the Court with no objection at the hearing.
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 Petitioner’s minibottle license should be granted upon receipt of a Grade A certificate by the Division of Food Protection of the Bureau of Environmental Health in the South Carolina Department of Health and Environmental Control and upon final inspection of the restaurant by the South Carolina Law Enforcement Division.
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 expedited hearing was timely given to all parties and the Protestant. All involved consented to the expedited hearing.
3. The Petitioner, Diner on Main, Inc., d/b/a Diner on Main, seeks an on-premise beer and wine permit for the premises located at 18 North Main Street, Suite 100, Greenville, South Carolina (“location”). The location is in an urban area inside the city limits of Greenville, South Carolina. The location is surrounded by other restaurants, retail shops, and some residential areas (a planned mixed use community).
4. Toshiyuki Kameda is the registered agent of Diner on Main, Inc., d/b/a Diner on Main, a South Carolina corporation.
5. Petitioner is over the age of twenty-one. He is a legal resident of the State of South Carolina, residing in Simpsonville, South Carolina. He currently owns and operates a restaurant in Mauldin along with his wife. The Mauldin Restaurant has been in operation for twelve (12) years. Petitioner has a beer and wine permit for the Mauldin location and has never had any violations or problems associated with the beer and wine permit. The Mauldin location does not advertise beer and wine, but beer and wine are offered. Petitioner plans to operate a similar restaurant at the Greenville location, however it is to be an upscale version of the restaurant.
6. Notice of Petitioner’s application was published in The Greenville News, a newspaper published and circulated Greenville County, South Carolina, once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.
7. The location is a full service family restaurant which plans to operate six days a week. Petitioner plans to operate the restaurant Monday through Thursday from 10:00 a.m. to 10:00 p.m. and from 10:00 a.m. to 11:00 p.m. on Friday and Saturday. Petitioner serves southern cuisine with daily specials, opening for lunch and dinner. Petitioner does not intend to extend the hours of operation of the restaurant nor make it a bar if the permit and license are granted. Only one tenth of the premises is planned to be used for a bar. The total area the restaurant encompasses is three thousand eight hundred (3800) square feet. Petitioner plans to manage the location with his wife full time. Petitioner has arranged for someone else to manage the Mauldin location.
8. Protestant/Intervenor cites S.C. Code Ann. § 61-6-170 (Supp. 2004) and S.C. Code Ann. § 61-6-910 (3) (Supp. 2004) to support his position that the permit and license should not be issued. Protestant/Intervenor argues the citizens are more than adequately served by the number of existing licensed premises. Protestant/Intervenor also argues a sufficient number of licenses have already been issued in the incorporated municipality. Protestant/Intervenor states that over 36 other licenses have been issued within a two (2) block radius of the location.
9. Protestant/Intervenor is concerned about late night drinking, lewd conduct such as public urination and vomiting, and increased crime resulting from another establishment receiving a beer and wine permit and minibottle license. Protestant/Intervenor claims the police force is already thinly spread. He also claims the city planners intended more residential and retail use in the area and less restaurant and bar use.
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. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2004).
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. 2004) 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. 2004).
5. S.C. Code Ann. § 61-6-1820 (Supp. 2004) sets forth the basic criteria for the issuance of a minibottle license. Although the suitability of the proposed location is not listed in Section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6. 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).
7. 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).
8. 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. ABC 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)).
9. Protestant/Intervenor cites S.C. Code Ann. § 61-6-170 (Supp. 2004) to support his position that the beer and wine permit and minibottle license should not be issued. This section applies to retail stores, not to beer and wine permits nor minibottle licenses.
10. Petitioner/Intervenor also cites S.C. Code Ann. § 61-6-910(3) (Supp. 2004) to support his position. Section 61-6-910(3) states, “The department must refuse to issue any license under this article or Article 7 of this chapter if the department is of the opinion that: (3) a sufficient number of licenses have already been issued in the State, incorporated municipality, unincorporated community, or other community.” S.C. Code Ann. § 61-6-910(3) (Supp. 2004). This section defers to the department’s opinion. In this case, the department would have granted the permit and license sought but for the Protestant/Intervenor’s timely protest.
11. 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 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. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.
12. 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).
13. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding a beer and wine permit and a mini-bottle license as a restaurant at the location. Although cognizant of the Protestant/Intervenor’s concerns, I conclude that the proposed location is a proper one for granting the permit and license.
14. In the case at hand, I find that the proposed location is suitable for Petitioner to operate a family restaurant with an on-premises beer and wine permit and a restaurant minibottle license. The location is in an urban area inside the city limits of Greenville, South Carolina. The location is surrounded by other restaurants and retail shops. While the area also supports increasing residential use, the residents in this area choose to reside among the restaurants, retail shops, and downtown landscape. I find that Petitioner’s proposed restaurant operations will not be detrimental to the welfare of the surrounding community. The evidence in the record indicates that Petitioner’s business will be a bona fide family restaurant, not a bar or nightclub. As such, it will be able to peaceably coexist with the neighboring residential community, much as other restaurants in downtown Greenville coexist with nearby residences.
15. 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 a restaurant minibottle license, and there has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner’s proposed restaurant or that the issuance of the permit and license would have an adverse impact on the surrounding community. Therefore, I find that Petitioner’s application for an on-premises beer and wine permit and a restaurant minibottle license should be granted.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall GRANT Petitioner’s application for an on-premises beer and wine permit and a restaurant minibottle license for the premises located at 18 North Main Street, Suite 100, Greenville, South Carolina upon receipt of a Grade A certificate by the Division of Food Protection of the Bureau of Environmental Health in the South Carolina Department of Health and Environmental Control and upon final inspection of the restaurant by the South Carolina Law Enforcement Division.
AND IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
September 1, 2005 Administrative Law Judge
Columbia, South Carolina |
