ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Court (ALC or Court)
pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005), § 61-2-260 (Supp.
2005), and § 61-6-1820 (Supp. 2005) for a contested case hearing. KMM, Inc.,
d/b/a Vallarta Grill (Petitioner), seeks a liquor by the drink license for its
location at 6907 Dorchester Road, North Charleston, South Carolina (location). The
South Carolina Department of Revenue (Department) denied Petitioner’s liquor by
the drink license because it found that the location was within three hundred
(300) feet of a church.
A hearing in this matter was held before me on May 23,
2006 at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties appeared at the hearing. Evidence was introduced and
testimony was given. After carefully weighing all the evidence, I find that Petitioner’s request for
liquor by the drink license should be granted.
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
persuasion by the parties, I make the following Findings of Fact by a
preponderance of evidence:
1. Notice of the
time, date, place and subject matter of the hearing was timely given to all the
parties.
2. Petitioner seeks
a liquor by the drink license for its location at 6907 Dorchester Road, North Charleston, South Carolina, which is located within the city limits.
3. Ignacio Gamez is the owner of KMM, Inc., a corporation
currently in good standing with the South Carolina Secretary of State.
4. Mr. Gamez is over the age of twenty-one. He is a legal
resident of the State of South Carolina and he has maintained his principal
place of abode in the State of South Carolina for at least thirty (30) days
prior to making this application. KMM, Inc. has a reputation for peace and good
order in the community and Mr. Gamez is of good moral character.
5. Notice of the application was lawfully posted both at the
location and in a newspaper of general circulation.
6. The proposed location
is a full service restaurant primarily and substantially engaged in the
preparation and serving of meals.
7. The location
is in a primarily commercial area in the city of North Charleston. It fronts
on Dorchester Road.
8. Faith
Covenant Christian Church (Church) is located beside the location on Dorchester Road in a building that used to house Heritage Trust Federal Credit Union. There
are two doors to the Church. One door faces Dorchester Road. The other faces
the Church parking lot, which is located directly behind the building. The
door facing Dorchester Road has a sign posted which reads, “Please use entrance
adjacent to parking lot.” See Petitioner’s Ex. 2-J. The door facing the
Church parking lot is marked “Main Sanctuary Entrance.” See Petitioner’s
Ex. 2-C. No one has been seen entering or exiting the Church using the door
which faces Dorchester Road. Only the door which faces the Church parking lot
is used for ingress and egress to the Church building. Accordingly, I find that
the entrance to the Church faces the church parking lot.
9. The South Carolina Law Enforcement Division (SLED) measured the distance between the front door
of the location and the Church door facing Dorchester Road to be 233 feet.
10. F. Steven
Johnson, PLS of George A. Z. Johnson, Jr., Inc. measured the distance between
the front door of the location and the door of the Church facing the parking
lot, the Church entrance, to be 617 feet. See Petitioner’s Ex. #1.
11. Following the
shortest route of ordinary pedestrian or vehicular travel along the public
thoroughfare to the Church entrance, the proposed location is in excess of 300
feet from the Church.
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 (2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 2005) grants the Administrative Law Court the responsibilities to determine contested matters governing
alcoholic beverages, beer and wine.
3. S.C. Code Ann. § 61-6-1820 (Supp. 2005) sets forth the
requirements for the issuance of a liquor by the drink license.
4. The factual determination of whether or not an application is
granted or denied is usually the sole prerogative of the executive agency
charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282
S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an
administrative law judge is authorized to determine the fitness of an applicant
for alcohol permits and licenses using broad but not unbridled discretion. Byers
v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. The weight and credibility assigned to evidence presented at
the hearing of a matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co., 308 S.C.
216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324
S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge,
when acting as a finder of fact, “has the authority to determine the weight and
credibility of the evidence before him”). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and
veracity and to evaluate the credibility of his testimony. See Woodall
v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).
6. Permits and licenses issued by this state for the sale of
liquor, beer and wine are not property rights. Rather, they are privileges
granted in the exercise of the State’s police power to be used and enjoyed only
so long as the holder complies with the restrictions and conditions governing
them. The Administrative Law Court, as the tribunal authorized to grant the
issuance of a permit, is likewise authorized to revoke or suspend the permit
for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26
S.E.2d 22 (1943).
7. S.C. Code Ann. § 6-6-120 (Supp. 2005) provides that no license
can be granted if “the place of business is within three hundred feet of any
church, school, or playground situated within a municipality…Such distances shall
be computed by following the shortest route of ordinary pedestrian or vehicular
travel along the public thoroughfare from the nearest point of the grounds in
use as part of such church, school, or playground….”
8. S.C. Code Ann. Regs. 7-303 (Supp. 2005) further clarifies the
method of measuring distances pursuant to Section 6-6-120. It provides that:
With respect
to a church or a school, the distance shall be measured from the nearest
entrance of the place of business by following the shortest route of ordinary
pedestrian or vehicular travel along the public thoroughfare to the nearest
point of entrance to the grounds of the church or school, or any building in
which religious services or school classes are held, whichever is the closer.
The South Carolina Department of Revenue has determined that the grounds in use
as part of the church or school is restricted to the grounds immediately
surrounding the building or buildings which provide ingress or egress to such
building or buildings and does not extend to the grounds surrounding the church
which may be used for beautification, cemeteries, or any purpose other than
such part of the land as is necessary to leave the public thoroughfare and to
enter or leave such building or buildings. Only one entrance to the grounds of
a church or school shall be considered, to wit: the entrance to the grounds
nearest an entrance to the church or school building. Where no fence is
involved, the nearest entrance to the grounds shall be in a straight line from
the public thoroughfare to the nearest door….
9. Petitioner meets the statutory requirements for holding a
liquor by the drink license, including the minimum distance requirement from
the Faith Covenant Christian Church. Because the location is within the city
of North Charleston, the location must be in excess of 300 feet of the Church
using the shortest route of ordinary pedestrian or vehicular travel along the
public thoroughfare to the nearest point of entrance to the grounds of the
Church. As testimony and photographic evidence at the hearing showed, the
Church only uses the rear door which faces the parking lot of the Church for
ingress and egress to the building. As such, it is the point of entrance to
the Church. Accordingly, the measurement of the distance between the front door
of the location and the entrance to the Church meets this minimum distance
requirement of 300 feet.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the application for a liquor by the
drink license by KMM, Inc., d/b/a Vallarta Grill, 6907 Dorchester Road, North
Charleston, South Carolina, is GRANTED.
AND IT IS SO ORDERED.
__________________________________
Marvin F.
Kittrell
Chief
Administrative Law Judge
June 1, 2006
Columbia, South Carolina
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