ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
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.
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 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.
CONCLUSIONS OF LAW
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.”
ORDER
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.
AND
IT IS SO ORDERED.
_________________________________
Ralph
King Anderson, III
Administrative
Law Judge
March 9, 2006
Columbia, South Carolina |
