ORDERS:
FINAL ORDER AND DECISION
This
matter comes before the Administrative Law Court (ALC or Court) for a contested
case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005),
61-2-260 (Supp. 2005), 61-4-520 (Supp. 2005), 61-4-525 (Supp. 2005), 61-6-1820
(Supp. 2005) and 61-6-1825 (Supp. 2005). GMRI, Inc., d/b/a Olive Garden
(Petitioner), seeks an on-premises beer and wine permit and a restaurant liquor
by the drink license for its proposed location at 210 State Park Road, Greenville, South Carolina (location). R.H. Patterson, Sr. (Protestant) filed a protest to
the application with the South Carolina Department of Revenue (Department).
Because of the protest, the hearing was required.
An expedited hearing in this matter was held on June 27,
2006 at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and the Protestant appeared at the hearing. Evidence was
introduced and testimony was given. After carefully weighing all the evidence,
I find that Petitioner’s request for an on-premises beer and wine permit and restaurant
liquor by the drink license should be granted.
FINDINGS
OF FACT
Having
observed the witnesses and reviewed the exhibits presented at the hearing and
closely passed upon their credibility, and having taken into consideration the
burden of persuasion by 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 timely given to all the
parties and the Protestants.
2. Petitioner seeks
an on-premises beer and wine permit and restaurant liquor by the drink license for
its proposed location at 210 State Park Road, Greenville, South Carolina.
3. GMRI, Inc. is a
corporation currently in good standing with the South Carolina Secretary of
State. It is a wholly owned subsidiary of Darden Restaurants, Inc., which owns
restaurants that include Olive Garden, Smokey Bones Barbeque and Grill, and Red
Lobster, among others. GMRI, Inc. has a reputation for peace and good order in
the community.
4. Petitioner
meets all statutory requirements for the issuance of a beer and wine permit and
restaurant liquor by the drink license.
5. The proposed location will operate as an Olive Garden restaurant that
will be primarily and substantially engaged in the preparation and serving of
meals. Olive Garden is a family restaurant that serves Italian cuisine. A very
small percentage of its sales are attributable to alcohol sales.
6. The proposed location sits on a 1.8 acre site at the corner of North Pleasantburg Drive and State Park Road in Greenville County. There is a traffic signal
at that intersection.
7. The proposed location is located in a primarily commercial area and
there are many other large retail businesses and restaurants in close
proximity. Two of the restaurants located nearby, Ruby Tuesday and Flat Rock
Grill, are family restaurants that also serve alcohol.
8. There are no churches, school, playgrounds, or residences in close
proximity to the location.
9. R.H. Patterson, Sr. filed a protest to the application. Mr. Patterson concerns
include the number of alcohol “outlets” in the area, the amount of traffic in
the area, the increasing availability of alcohol, the possible impact that
alcohol may have on the crime rate in the area, and an inadequate amount of law
enforcement available to respond to alcohol related incidents.
10. The proposed location is suitable for an on-premises beer and wine
permit and restaurant liquor by the drink license.
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
responsibility to determine contested matters governing alcoholic beverages,
including beer, wine and liquor.
3. S.C.
Code Ann. § 61-4-520 (Supp. 2005) sets forth the requirements for the issuance
of a beer and wine permit.
4. S.C.
Code Ann. § 61-6-1820 (Supp. 2005) sets forth the requirements for the issuance
of restaurant liquor by the drink license. Section 61-6-1820(1)
provides that an applicant may receive a license upon the finding that
"[t]he applicant is a bona fide nonprofit organization or the applicant
conducts a business bona fide engaged primarily and substantially in the
preparation and serving of meals or furnishing of lodging."
5. 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).
6. 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).
7. 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 181 (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 any adverse effect the proposed
location will have on the community. Palmer, supra. 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). Furthermore, 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. Id.
8. Unless
there is 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).
9. 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).
10.
I find that the proposed location is suitable for the issuance of an
on-premises beer and wine permit and restaurant liquor by the drink license.
The location is in a commercial area with many other large retail businesses
and restaurants located nearby. There are also several other family restaurants
nearby that serve alcohol. In addition, no churches, school, playgrounds, or
residences are in close proximity to the location. Essentially, there is no
evidence in the Record that the location is unsuitable or that it would have an
adverse impact on the community. Protestant’s concerns consist only of
generalities and are based upon a fundamental opposition to alcohol. Furthermore,
Petitioner meets all statutory criteria for holding an on-premises beer and
wine permit and restaurant liquor by the drink license. Accordingly,
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that the application for an on-premises beer and wine
permit and restaurant liquor by the drink license by GMRI, Inc., d/b/a Olive
Garden, for its proposed location at 210 State Park Road, Greenville, South Carolina is GRANTED.
AND
IT IS SO ORDERED.
__________________________________
Marvin F.
Kittrell
Chief
Administrative Law Judge
June 29, 2006
Columbia, South Carolina
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