This matter comes
before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §61-2-90
(Supp. 2005) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp.
2005) for an expedited contested case hearing. The Petitioner, Angela Crespo,
is the owner of a restaurant, Mi Rinconcito Criollo, and seeks an on-premise
beer and wine permit for the establishment. A hearing on the merits of this
case was held on May 2, 2006, in Columbia, South Carolina. Notice of the time,
date, place, and subject matter of the hearing was provided to all parties. The
parties were present as indicated above. The Protestants Bernard Edmonds,
Billy and Akiko Beville and Sarah McCoy were not present and their protests are
deemed abandoned. Based on the evidence before me, I find that the location
shall be permitted as applied for.
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 Mi Rinconcito Criollo,
located at 1701 Percival Road, Columbia, 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 Raymond House was timely received by the Department.
3.
The Petitioner is a legal resident of the State of South Carolina and
is employed
by the South Carolina Department of
Corrections.
4.
The Petitioner has no criminal record and is of sufficient moral
character to
receive a beer and wine permit.
5. The
location has been previously licensed, although the Petitioner has never held a
license. Petitioner plans a restaurant with tropical food. The location would
be open daily and would close by 8 PM. The restaurant seats approximately
40—45 people and has parking spaces for about 20 cars. There is sufficient
light inside and outside the restaurant. The Petitioner has removed a pool
table from the restaurant to emphasize that the location is not a “bar.”
6. Two
other witnesses testified that the restaurant has good food and a pleasant
atmosphere. It is not a place to “hang out” and drink. The Spanish tradition
is to have a glass of wine with dinner and this location would allow that.
7. The Protestant has
concerns about the number of alcohol locations in the area. He testified that
he has no problems with Ms. Crespo personally and no concerns about the effect
on traffic in the area. His primary goal is to minimize the number of licensed
premises near his neighborhood which he testified includes 850 homes.
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. 2005).
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 Protestant did not present any specific incident reports dealing with Mi Rinconcito Criollo or Ms. Crespo.
9. Most of
the Protestant’s arguments against the granting of the license sought herein
are that the neighborhood has sufficient alcohol outlets. 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).
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.
Although the concerns of the Protestant are understandable, and
the witness
exhibited great credibility in his opposition
to the location, his arguments were not directed to any specific problems with
Petitioner’s location. There were neither concerns about traffic nor any
specific problems with drinking and driving. 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 Mi Rinconcito Criollo, 1701 Percival Road, Columbia, SC is GRANTED upon payment of any required fees and costs by the Petitioner to the
Department.
AND IT IS SO
ORDERED.
__________________________________
CAROLYN
C. MATTHEWS
Administrative
Law Judge
May 9, 2006
Columbia, South
Carolina
