ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter comes before the Administrative Law Court (Court) pursuant to S.C. Code
Ann. §61-4-520 (Supp. 2005) for an expedited contested case hearing. The
Petitioner seeks an on-premises beer and wine permit and liquor by the drink
license (denominated as a business minibottle license on the application) for
the location at 301 East Main Street, Ninety Six, South Carolina. This matter
is presently before the Court because of a protest by several concerned
citizens. After notice to the parties and Protestants, a hearing was conducted
on May 3, 2006 in Columbia, South Carolina. At the hearing, the parties, their
counsel and Protestants were present as indicated. Protestant Joseph Ouzts,
who had filed a valid protest with the Department, did not attend the hearing
and his protest is deemed abandoned. I find and conclude that the license and
permit requested by the Petitioner shall be granted as outlined below.
FINDINGS
OF FACT
Having
observed the testimony of the witnesses and exhibits presented at the hearing
and having 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 and mini-bottle license
for the location located at 301
East Main Street Ninety Six, South Carolina. This location is planned as a
Mexican restaurant, Los Cascades.
2. The
Respondent, South Carolina Department of Revenue, determined that the
location and the Petitioner met all
statutory requirements and would have granted the license and permit but for
the protests. At the hearing, the parties stipulated that all statutory and
regulatory requirements have been met and that the sole issue to be determined is
the suitability of the location based on the Protestants’ concerns.
6. Once
renovations are completed, the proposed location will have seating for over 100
people. The restaurant will be open from 11:00 AM to 10 PM, with the
possibility of remaining open to 11 PM if demand merits. The Petitioner is a
native of the area and has worked to develop and improve his town. He is a
business owner and lives approximately 2 miles from the proposed location. Mr.
Werts testified that the location will not be a “bar,” but that a limited
selection of alcohol will be available to patrons who request it. Mr. Werts
introduced into evidence a copy of his food menu, along with the separate
one-page menu of alcoholic beverages for those who request it. His manager is
experienced in the restaurant business. Mr. Jimanez, the manager, testified
that each employee will receive training in preventing underage alcohol sales
and in refusing to sell alcohol to patrons who may appear intoxicated.
CONCLUSIONS
OF LAW
Based
upon the foregoing Findings of Fact, I conclude as a matter of law, the
following:
1. The
South Carolina Administrative Law Court has jurisdiction over 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. Although
“proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of the proposed business
location of an applicant who is seeking a permit to sell beer and wine. Fast
Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F.
Byers v. South Carolina ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App.
1984) (beer and wine permit); Schudel v. South Carolina ABC Comm’n, 276
S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).
4. It
is also the fact finder’s responsibility to judge the demeanor and credibility
of the witnesses and determine the relevance and weight of any testimony
offered.
5. In
considering the suitability of a location, it is relevant to consider the
previous history of the proposed location and to determine whether the testimony
in opposition to a permit consists of opinions and conclusions or is supported
by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
6. 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 alone
to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
7. S.C.
Code Ann. § 61-4-525 (Supp. 2005) provides that a person residing in the county
in which a beer and wine permit is requested to be granted, or a person
residing within five (5) miles of the location, may protest the issuance of the
permit if he files a written protest.
8. Permits
and licenses issued by the State are not rights or property, but are rather
privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm’n, 201 S.C. 49, 26 S.E.2d 22 (1943).
9. The
Protestant Michael Bryant is concerned about the nature of the area where this proposed
restaurant is located. In particular, he notes that the Edgewood Middle School
is nearby, as well as a city park, a recreation complex, a government housing
project which is home to several children, a church and several neighborhoods.
He testified that there are numerous children in the immediate area at all
times of the day. Although he does not object to the presence of the
restaurant or to Mr. Werts personally, he does wish that the restaurant would
not serve alcohol. In addition, he is concerned about the effect that allowing
this restaurant would have on other potential alcohol permits in the area.
10. The
Protestant Lynn Sargent testified that her objection is to the sale of
alcohol. She is aware that locations in Greenwood County have served alcohol
to minors, and she is concerned about the number of children in the area and
the increased traffic.
11. After
considering all the relevant factors, I find that the restaurant’s location is
suitable for the on-premises sale of beer and wine and liquor by the drink
license, upon satisfactory completion of construction and final inspections,
including DHEC. Although this court appreciates the concerns of the
Protestants, and they were both very passionate in their concerns, the location
and the Petitioner have met all the statutory and regulatory requirements. In
addition, the Petitioner’s efforts to redevelop a depressed area are
admirable. His restaurant will be primarily engaged in selling food and should
be an economic asset to the town.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the South Carolina Department of Revenue grant the Petitioner’s
application for an on-premises beer and wine permit and sale and consumption
(minibottle) license upon satisfactory completion of all renovations,
inspections and payment of any and all necessary fees.
AND
IT IS SO ORDERED.
___________________________________
CAROLYN
C. MATTHEWS
Administrative
Law Judge
May 12, 2006
Columbia, South
Carolina |
