ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-2-90 (Supp. 2004) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2004) for an expedited contested case hearing. The Petitioner, Cantina El Dos De Oro, is the owner of a restaurant, Cantina El Dos De Oro. Cantina El Dos De Oro is a partnership. Zulema Lindusky, the managing partner, seeks an on-premise beer and wine permit for the establishment. A hearing on the merits of this case was held on August 18, 2005, in Columbia, South Carolina. Notice of the time, date, place, and subject matter of the hearing was provided to all parties at least thirty (30) days prior to the hearing date. The parties were present as indicated above. Based on the evidence before me, I find that the location shall be permitted as applied for.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing in this matter and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:
1. The Petitioner seeks an on‑premises beer and wine permit for the establishment
known as Cantina El Dos De Oro, located at 4715 Augusta Road, North Augusta, South Carolina.
2. Notice of the application was lawfully posted for fifteen days at the location, and
notice of the application also ran in The Star, a newspaper of general circulation in the area. The protest of Reverend Lallie Boyd of Abundant Life Church was timely received by the Department. Due to the fact that this protestant had major surgery and the fact that the hearing was expedited, the Reverend Christie Heath was allowed to address the court regarding the concerns of Abundant Life Church.
3. The Petitioner is a legal resident of the State of South Carolina.
4. The Petitioner and the principals have no criminal record and are of sufficient
moral character to receive a beer and wine permit.
5. The location has been a bar for several years, according to the landlord. Petitioner plans a bar to cater to the needs of the Spanish citizens in the area. It will be a place to come to listen to music and play pool. The location would be open daily from 2:00 PM to midnight and closed on Sunday. The restaurant seats approximately 50 people and has 10 parking spaces.
6. The Protestant has concerns about the possible negative influence the presence of
alcohol will have on the neighborhood. Rev. Heath testified that the area is commercial. There is a ball field behind the proposed location, but the Recreation League which runs the ball field did not protest. The church is concerned about the number of people who may be drinking and driving, the increased traffic, and the affect on the children in the church programs.
7. Mr. Charles Weathersbee, the owner of the building which will house the Cantina, testified that the majority of the clientele will arrive on foot. In addition, he testified that the location had been a bar for over 50 years. He owns the residences nearest to the location; he informs his tenants that the location is a bar before he rents the residence.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Court has jurisdiction in this
matter pursuant to S.C. Code Ann. §61‑2‑260 (Supp. 2004).
2. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).
3. The applicant has complied with all the provisions of S.C. Code Ann. §61‑4‑520
regarding application conditions. The only remaining issue is the suitability of the location pursuant to S.C. Code Ann. § 61‑4‑520(6) and (7).
4. Licenses and permits issued by the State for the sale of beer, wine, and liquor are
not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are satisfied. Because the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is also authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
5. 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).
6. 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 a beer and wine permit using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984, dealing with a Retail Liquor License). 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.
7. Although “proper location” is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a 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 on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself upon which the location may be found to be unsuitable and a license denied. Byers v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
8. 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, 261 S.C. 168, 198 S.E.2d 801 (1973). The Protestants did not present any specific incident reports dealing with Cantina El Dos De Oro.
9. Most of the Protestant’s arguments against the granting of the license sought herein are that the church does not want this type of business, i.e., a business that serves beer, in its community. However, an aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of an application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (1981).
10. The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer and wine, did not object to the granting of a permit in this case. I find that this location is suitable for the on‑premises sale of beer and wine.
11. Although the concerns of the Church are understandable, and the witness
exhibited great credibility in her opposition to the sale of beer and the possible temptations to some of the people involved in its missions, I find that the central concerns are general moral opposition, and not directed to any specific problems with Petitioner’s location. The concerns about traffic and drinking and driving are speculative. I find that this location shall be permitted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for an on‑premises beer and wine permit at Cantina El Dos De Oro, Inc., d/b/a Cantina El Dos De Oro, 4715 Augusta Road, North Augusta, SC is GRANTED upon payment of any required fees and costs by the Petitioner to the Department.
AND IT IS SO ORDERED.
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August 25, 2005 CAROLYN C. MATTHEWS
Columbia, South Carolina Administrative Law Judge |
