South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

Demetrio Hernandez, d/b/a El Arrancon vs. SCDOR

South Carolina Department of Revenue

Demetrio Hernandez, d/b/a El Arrancon

South Carolina Department of Revenue

For the Petitioner:
Michael Chesser, Esquire

For the Department of Revenue:
Harry Hancock, Esquire

For the Protestant:
Sheriff Jason C. Booth and Captain Robert Shorter




This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2005) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2005) for a contested case hearing. Respondent South Carolina Department of Revenue (Department) denied Petitioner’s request to receive an on-premise beer and wine permit. Petitioner filed for a contested case hearing with the Administrative Law Court (ALC or Court) to review that determination. A hearing was held before me on March 9, 2006, at the offices of the ALC in Columbia, South Carolina.


Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of proof upon the parties, I make the following Findings of Fact by a preponderance of the evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to Petitioner and the Department of Revenue.

2. Petitioner Demetrio Hernandez seeks an on-premise beer and wine permit for El Arrancon, located at 2018 Johnston Avenue, Johnston, South Carolina.

3. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 2005) concerning the residency and age of Petitioner are properly established. Furthermore, Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The proposed location is not unreasonably close to any church, school or playground. The nearest business is a fitness center which is approximately 300 feet from the proposed location and the closest church is approximately eight-tenths (8/10) of a mile away.

5. In order to deny this permit, direct evidence of an adverse impact on the community is necessary. Here, there have been numerous incidents at the proposed location and in the immediate vicinity including grand larceny, murder and multiple burglaries which have required the attention of the Saluda County Sheriff’s Department. The Sheriff's office could provide the area with adequate law enforcement. However, currently the Sheriff’s Office is “shorthanded.” Furthermore, the proposed location is located Highway 121, otherwise known as Johnston Avenue. Highway 121 is a commonly used corridor to connect trucks traveling between I-20 and I-26. Moreover, the proposed location is on a curve in the highway. That curve creates a traffic danger because is the severity of the bend in the roadway and the change in elevation. In the past few years, there has been at least one documented accident at the curve. Moreover, the proposed location is near an intersection the intersection Highway 121 and Fruit Hill Road. Moreover, the proposed site is located on a curve and hill and is also near , creating a possible blind intersection.

Though the potential burden the proposed location potentially places upon law enforcement and the potential traffic danger individually may not justify the denial of this permit, I find that the existence of both warrants denying this permit. Therefore, I find that the proposed location is unsuitable for an on-premise beer and wine permit.


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. 2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2005) grants the Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2. A beer and wine permit is neither a contract nor a property right. It is, rather, a privilege granted in the exercise of the State's police power “to do what otherwise would be unlawful to do. . . .” Feldman v. South Carolina Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943). S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2005) set forth the requirements for the issuance of a beer and wine permit. In particular, Section 61-4-520(6) vests the Administrative Law Court, as the trier of fact, with the authority to determine if the proposed place of the applicant’s business is a “proper” one.

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 118 (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 the 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). The strain upon law enforcements ability to adequately protect the community is a reason to deny a permit. Moore v. South Carolina Alcoholic Beverage Control Com'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Furthermore, in Palmer supra., the Court specifically upheld the consideration of both the traffic danger created by granting a permit and the adverse impact upon law enforcement.

3. I find that although the Petitioner seems to be sincere in his effort to run an acceptable business at this location, the Petitioner nonetheless failed to establish that the location is suitable or “proper.”


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

ORDERED that the Petitioner's application for an on-premise beer and wine permit be denied.



Ralph King Anderson, III

Administrative Law Judge

March 9, 2006

Columbia, South Carolina

Brown Bldg.






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