South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Tanya Andrade, d/b/a La Michoacana vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Tanya Andrade, d/b/a La Michoacana
7844 White Horse Road, Greenville, South Carolina

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0316-CC

APPEARANCES:
Tanya C. Andrade
Petitioner, pro se

Dana R. Krajack, Esquire
For Respondent

R.H. Patterson, Sr.
Protestant, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before this 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. (2005) for a contested case hearing. Petitioner Tanya Andrade seeks an off-premises beer and wine permit for her grocery store, La Michoacana, located at 7844 White Horse Road in Greenville, South Carolina. Respondent South Carolina Department of Revenue (Department) denied Petitioner’s application for a beer and wine permit solely because of a protest filed R.H. Patterson, Sr., a resident of Greenville County, regarding the suitability of the proposed location for Petitioner’s store. After timely notice to the parties and the protestant, a hearing of this case was held on October 11, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the location and upon the applicable law, I find that Petitioner’s application for an off-premises beer and wine permit should be granted.

 

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1. On or about April 28, 2005, Petitioner Tanya Andrade submitted an application to the Department for an off-premises beer and wine permit for her grocery store known as La Michoacana located at 7844 White Horse Road in Greenville, South Carolina. This application and the Department’s file on the application are hereby incorporated into the record by reference.

2. Notice of Petitioner’s application was published once a week for three consecutive weeks in The Greenville News, a newspaper published and circulated in Greenville, South Carolina, and proper notice of the application was posted at the proposed location for fifteen days.

3. Petitioner is over twenty-one years of age, has no delinquent state or federal taxes, and is a legal resident of the United States and the State of South Carolina. Further, Petitioner resides and maintains her principal place of abode in South Carolina, and did so for at least thirty days prior to making her application for a beer and wine permit.

4. Petitioner has no criminal record and there is no evidence in the record to suggest that Petitioner has engaged in acts or conduct implying the absence of good moral character. Further, Petitioner has not had a beer and wine permit that she held suspended or revoked, and the record does not reveal that Petitioner has committed any violations of South Carolina’s alcoholic beverage laws.

5. Petitioner’s store is situated on White Horse Road, a major thoroughfare in the Greenville area, near its intersection with Farrs Bridge Road. While there are three residences located across White Horse Road from the store, the general area surrounding the store is commercial in nature, with three gas stations and convenience stores located at the intersection of White Horse Road and Farrs Bridge Road and a large shopping center located on White Horse Road just past the intersection with Farrs Bridge Road. There are no churches, schools, or playgrounds within close proximity to the location of Petitioner’s store.

6. Petitioner previously operated a similar store, with an off-premises beer and wine permit, at another location in the Greenville area for over one year without incident. She decided to relocate her business to the location in question because the property has a larger building for the store and is situated in a better location.

7. The protestant, R.H. Patterson, Sr., opposed Petitioner’s application for an off-premises beer and wine permit primarily because of his belief that the economic costs and social harms caused by the consumption of alcoholic beverages outweigh any economic or social benefits derived from the sale and consumption of alcohol. In particular, Mr. Patterson was concerned with the addition of another business licensed to sell alcoholic beverages along White Horse Road, which he considers to be a “high-traffic area and a high-crime area.”

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. (2005).

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. S.C. Code Ann. §§ 61-4-500 through 61-4-620 (Supp. 2004) govern applications for retail beer and wine permits and establish the criteria for determining eligibility for those permits. Further, S.C. Code Ann. § 61-2-100 (Supp. 2004) lays out the general requirements that all applicants for permits and licenses to sell alcoholic beverages must satisfy.

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. See id. § 61-4-520(6)-(7).

5. Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness and 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).

6. 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).

7. However, 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 or license is protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. Further, the denial of a license or 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 v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

9. In making a decision in this matter, this Court is constrained by the record before it and the applicable statutory and case law. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of a beer and wine permit, and there has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner’s grocery store or that the issuance of the permit in question would create problems in or have an adverse impact upon the surrounding community. Petitioner’s grocery store, like other convenience and grocery stores in the area, will only offer beer and wine for off-premises consumption, and thus will not create the sort of problems associated with establishments that allow the consumption of alcohol on the premises. Accordingly, there is no evidence in the record to suggest that, given the nature of Petitioner’s business, the sale of beer and wine at Petitioner’s store will have an adverse impact upon the surrounding community or will otherwise be out-of-keeping with the character of that community. Therefore, while this Court is respectful of the protestant’s opposition to the requested permit, the arguments proffered by the protestant, particularly as they concern the basic legality of the sale of alcoholic beverages, do not constitute a sufficient basis upon which to deny Petitioner’s application.

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 off-premises beer and wine permit for the premises located at 7844 White Horse Road in Greenville, South Carolina.

AND IT IS SO ORDERED.

 

______________________________

JOHN D. GEATHERS

Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731

 

October 25, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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