ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE
CASE
This
matter is before the Administrative Law Court (“ALC”) for a final order and
decision following a contested case hearing pursuant to S.C. Code Ann. §§ 1-23-310 et seq. (2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), and S.C. Code
Ann. § 61-2-260 (Supp. 2005). The petitioner, Daniel Castillo (“Castillo”),
applied for a permit to sell beer and wine for on-premises consumption pursuant
to §§ 61-4-500 et seq. for the location at 3346 Ashley Phosphate Road, North Charleston, South Carolina 29418. The Truth and Fellowship Ministry (“Protestant”) filed
a written protest to Castillo’s application. Respondent South Carolina
Department of Revenue (“Department”) denied the application pursuant to §
61-4-525 due to the receipt of the Truth and Fellowship Ministry’s valid public
protest. The Department also denied the application because it found that Castillo
did not meet the statutory residency requirement of S.C. Code Ann. §
61-4-520(2).
After
timely notice to the parties and the Protestant, the court held a hearing on
this matter on August 9, 2006, at the ALC in Columbia, South Carolina. Both
parties and a representative of the Protestant, Ms. Jolietta Davis, appeared at
the hearing. Evidence was introduced and testimony presented. After carefully
weighing all of the evidence, the court finds that Castillo’s application for
this location should be granted.
ISSUES
The
Department raised the issue of whether Castillo meets the statutory residency
requirement. § 61-4-520(2). Additionally, the Protestant raised the issue of
suitability of location. §§ 61-4-520(5)-(6).
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and taking into consideration the burden of persuasion
by the parties, the court makes the following Findings of Fact by a preponderance
of the evidence.
Evidence
was presented regarding all of the relevant statutory criteria. Notice of the
time, date, place, and subject matter of the hearing was timely given to all
parties and the Protestant.
Castillo
seeks a permit for the retail sale of beer and wine for on-premises consumption
for the location at 3346 Ashley Phosphate Road, North Charleston, South Carolina 29418. The proposed location is inside the municipal limits of North Charleston. Notice of the application was lawfully posted at the location and
published in a newspaper of general circulation.
Castillo
is the sole proprietor of the business for which he seeks the requested
permit. Castillo is over the age of twenty-one. He is of good moral character
and has never had a beer and wine permit revoked. He has no criminal record
and does not owe the state or federal government any delinquent taxes,
penalties, or interest.
Castillo
is a resident alien from Mexico legally residing in the United States with a valid “green card” issued by the federal government. In addition to
operating Taqueria La Estrella with the assistance of his wife, Castillo works
in the dry wall construction business. Formerly a resident of Charlotte, North Carolina, Castillo began working in the Charleston, South Carolina area in September
of 2003, traveling to South Carolina to work during the week and returning on
the weekends to North Carolina where his family still resided. During that
time he rented an apartment in the Charleston area. In June of 2004, he
renewed his North Carolina driver’s license.
In
December of 2004, Castillo purchased a home in Ladson, South Carolina and moved
his family there. He has resided there ever since with his wife and four
children, who attend public schools in Berkeley County. Castillo’s brother now
resides in the mobile home where Castillo and his family lived in Charlotte, North Carolina. Castillo owns no property in North Carolina. Castillo
testified that he considers South Carolina to be his permanent home.
Castillo
engaged Lowell Richard James, a tax practitioner in the Charleston area, to
assist him in tax preparation matters. James testified that he filed state and
federal income tax returns on Castillo’s behalf for the tax years 2004 and
2005. These tax returns indicate that Castillo resides at 420 Lander Street
in Ladson, South Carolina. Additionally, James testified that he has filed
state sales tax returns for Taqueria La Estrella each month since it opened in
November of 2005. Since 2004, all of Castillo’s income has been earned in South Carolina; he no longer performs any work in North Carolina.
Castillo
testified that he owns three automobiles, all of which are registered in South Carolina. He maintains a business checking account at a South Carolina branch of
Wachovia and a personal checking account at a South Carolina branch of Bank of
America. Castillo testified that he opened these accounts in South Carolina and
that his checks reflect his Ladson address.
At
the time of the filing of his application in February of 2006, Castillo
maintained his North Carolina driver’s license and did not possess a South Carolina driver’s license. On May 5, 2006, Castillo was issued a valid South Carolina driver’s license, a copy of which was introduced into evidence. Castillo
testified that he attempted to obtain a South Carolina driver’s license at some
point prior to May of 2006 but that he was denied a license because he was not
a citizen.
Castillo
seeks a beer and wine permit for on-premises consumption at a Mexican
restaurant, Taqueria La Estrella, which he has operated since November of
2005. The proposed location is on Ashley Phosphate Road, a six-lane
thoroughfare with heavy traffic. The area immediately surrounding the proposed
location is primarily, if not exclusively, commercial. The evidence shows that
a pizza parlor called Vesuvio’s previously operated under different ownership
at the proposed location. This restaurant was permitted to sell beer and
wine. Additionally, at least two businesses across the street serve beer,
wine, or liquor.
The
proposed location is a Mexican restaurant with no separate bar area. It serves
a broad clientele including families with children. The evidence shows that it
is not a location that people typically patronize simply to drink alcohol. It
is open seven days a week from 10:00 a.m. to approximately 10:00-11:00 p.m. It
does not offer live entertainment. It has over 40 parking spaces and patrons
do not loiter outside the restaurant.
The
Protestant, Truth and Fellowship Ministry, is located on the adjacent property
to the proposed location. However, the church sits much further back from Ashley Phosphate Road than does Castillo’s restaurant. Jolietta Davis, who testified on
behalf of the Protestant, expressed concerns as to safety of children in the
church’s parking lot. She testified that patrons of the restaurant sometimes
park in the church parking lot and walk over to the restaurant, although she
stated that this has not interfered with the availability of parking at the
church. She also expressed concern regarding past incidents of littering from
patrons of Vesuvio’s, the previous restaurant at the proposed location. The
court found Ms. Davis to be earnest, forthright, and honest.
LAW
Based
upon the foregoing Findings of Fact, the court concludes the following as a
matter of law.
1. Jurisdiction
Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to §§ 1-23-310 et seq., § 1-23-600(B), and § 61-2-260. “[T]he
issuance or granting of a license to sell beer or alcoholic beverages rests in
the sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317
S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic
Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977). 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). 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, e.g., Woodall v. Woodall, 322
S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace v. Milliken & Co.,
300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App. 1990).
2. Legal Residence
a.
Law
Section
61-4-520 establishes the criteria for the issuance of a beer and wine permit,
including a residency requirement. A permit may be granted only if the “applicant
is a legal resident of the United States, has been a legal resident of this
State for at least thirty days before the date of the application, and has
maintained his principal place of abode in the State for at least thirty days
before the date of application.” § 61-4-520(2).
The
Code and the regulations do not provide a definition or indicate the requirements
to be a “legal resident.” However, the Supreme Court of South Carolina and the
United States District Court for the District of South Carolina equate the term
“legal residence” with “domicile,” finding no distinction between the two
terms. Phillips v. S.C. Tax Comm’n, 12 S.E.2d 13, 195 S.C. 472 (1940); see
also Mizell v. Eli Lilly & Co., 526 F.Supp. 589 (D.S.C. 1981) (“‘[A]ctual
residence’ connotes something less than domicile and
merely requires actual habitation within the state: intention is irrelevant. ‘Legal residence’ is defined as the same as ‘domicile.’”). A recent Court of
Appeals case found:
‘Domicile’ is the
place of one’s true, fixed, and permanent home and principal establishment, to
which one has the intention of returning after an absence therefrom; the
question of a person’s place of residence is largely one of intent to be
determined under the facts and circumstances of each case, and the act and
intent as to domicile, not the duration of the residence, are the determining
factors.
Widdicombe v.
Tucker-Cales, 366 S.C. 75, 620 S.E.2d 333 (Ct. App. 2005). Therefore,
domicile requires primarily physical presence and the intent to be domiciled in
South Carolina. See Mizell, 526 F.Supp. at 592 (“It is widely
recognized throughout the United States that the two principal elements of
domicile, physical presence in a locale and the intention to remain there
indefinitely, must coexist before a new domicile is established in a particular
location.”). The Supreme Court has further defined “domicile” by stating:
It
is generally recognized, as we did in Gasque, that intent is a most
important element in determining the domicile of any individual. It is also
elementary, however, that any expressed intent on the part of a person must be
evaluated in the light of his conduct which is either consistent or
inconsistent with such expressed intent. Other elementary propositions which
require no citation of authority are that a person can have only one domicile
at a time; one maintains his prior domicile until he establishes or acquires a
new one. A person may have more than one residence, but cannot have more than
one domicile or be a citizen of more than one state at the same moment.
Ravenel v. Dekle, 265 S.C.
364, 378, 218 S.E.2d 521, 528 (1975). Accordingly, intent is the necessary
element in determining domicile or “legal residence.”
Courts can consider a myriad of factors when determining residence.
These factors include ownership of a home, location of bank accounts, payment
of state income taxes, car registration, driver’s license, voter registration, listing of “legal” or “permanent” address on federal tax returns,
and expressed intention. See, e.g., Ravenel, 265 S.C. at 364,
218 S.E.2d at 521; 27 S.C. Code Ann. Regs. 117-640.1.3 (Supp. 2005) (listing
factors to consider in determining “legal residence” of military personnel for
tax purposes). This list should not be considered exhaustive and may not
necessarily be dispositive of the question of domicile. As noted
above, the true test of domicile is the intent of the individual, not any
particular set of documents. Consequently, while the existence of certain
documents can provide some indication of the domiciliary intentions of an
individual, the absence of those documents need not necessarily indicate a lack
of domiciliary intent. Brown vs. Charleston County Assessor,
03-ALJ-17-0515-CC (June 16, 2004).
b.
Conclusions
Castillo
introduced ample evidence that he was a legal resident of the State of South Carolina for at least thirty days before February 6, 2006, the date of his application, and that he maintained his principle place of abode in South Carolina
for at least thirty days prior to that date. The court finds that Castillo
became a legal resident of the State of South Carolina no later than the end of
December of 2004, by which time he had purchased a home and moved his family to
South Carolina. The evidence shows that his bank accounts were opened and
are maintained in South Carolina, that he lists his South Carolina address in
Ladson as his residence on his state and federal income tax returns, that his
children attend South Carolina schools, and that his vehicles are registered in
South Carolina. Furthermore, as noted above, the court finds that Castillo expressed his intention to remain permanently in South Carolina.
Thus, he has both the physical presence and the intent necessary to establish
domicile in South Carolina. See Widdicombe, 366
S.C. at 75, 620 S.E.2d at 333; Mizell, 526 F.Supp. at 589.
The
only evidence offered by the Department in support of its denial of Castillo’s
application for failure to satisfy the residency requirement was the fact that
he possessed a North Carolina driver’s license showing a North Carolina address
at the time he applied for the requested permit. However, the court finds that
the fact that he renewed his North Carolina driver’s license six months before
purchasing a home in South Carolina and the fact that he failed to obtain a
South Carolina driver’s license upon relocating to South Carolina do not
establish a lack of domiciliary intent when compared with the compelling
evidence produced by Castillo establishing his legal residency in South
Carolina. While the possession of a South Carolina driver’s license is one
important factor to consider, no particular document alone establishes legal
residency. See Brown vs. Charleston County Assessor,
03-ALJ-17-0515-CC (June 16, 2004).
The court therefore concludes based on the evidence as a whole that Castillo has
met his burden of proof that he was a legal resident of South Carolina for at
least thirty days before the date of his application and that he maintained his
principle place of abode in South Carolina for at least thirty days before the
date of his application in compliance with § 61-4-520(2).
3. Suitability of
Location
a. Generally
Section 61-4-520 establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the
proposed location be a proper and suitable one. See §§ 61-4-520(5)-(6).
b. Factors
in Determining Proper Location
“Proper location” is not statutorily defined, but broad
discretion is vested in the trier of fact to determine the fitness or
suitability of a particular location for the requested permit. See Fast
Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). In
determining whether a proposed location is suitable, it is proper for this
tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 326, 338 S.E.2d 335, 337 (1985); Palmer
v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 249, 317 S.E.2d
476, 478 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972)). The determination of suitability of location is not
necessarily solely a function of geography. Rather, 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, 287 S.C. at 326-27, 338 S.E.2d at 337; Schudel v. S.C. Alcoholic
Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981). Further,
a liquor license or permit may be
properly refused on the ground that the location of the establishment would
adversely affect the public interest, that the nature of the neighborhood and
of the premises is such that the establishment would be detrimental to the
welfare . . . of the inhabitants, or that the manner of conducting the
establishment would not be conducive to the general welfare of the community.
48
C.J.S. Intoxicating Liquors § 121 at 501 (1981).
Other factors may be considered when determining whether a
location is proper. For example, although the General Assembly did not provide
absolute statutory distance requirements for beer and wine permits as it did
for liquor licenses, the proximity to residences, churches, schools, and
playgrounds may be considered for beer and wine permits. § 61-4-520(6); Smith,
258 S.C. at 504, 189 S.E.2d at 301. Therefore, the decision as to whether the
proximity is improper for a beer and wine permit must be made on a case-by-case
basis resting upon the peculiar facts of each permit request.
Additionally, consideration can be given to the impact the
issuance of the permit will have on law enforcement. Fowler v. Lewis,
260 S.C. 54, 194 S.E.2d 191 (1973); Roche v. S.C. Alcoholic Beverage Control
Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Evidence that the granting of
a permit will place a strain upon police to adequately protect the community must
be weighed. Moore v. S.C. Alcoholic Beverage Control Comm’n, 308
S.C. 160, 162, 417 S.E.2d 555, 557 (1992). Denial is appropriate where the
public areas surrounding the proposed location have been the source of constant
law enforcement problems or significant problems with public intoxication. Roche,
263 S.C. at 451, 211 S.E.2d at 243. Another pertinent fact is whether police
have been summoned to the scene on prior occasions when licensed to another
party. Schudel, 276 S.C. at 141-42, 276 S.E.2d at 309-10. It is
relevant whether the location is near other locations that have either been a
constant source of law enforcement problems or are locations where young people
congregate and loiter. Palmer, 282 S.C. at 250, 317 S.E.2d at 478.
Similarly, consideration can be given to whether the location
is heavily traveled or creates a traffic danger. Id. Furthermore, whether the location has in the recent past been permitted
and whether the location is now more or less suitable than it was in the past
is a relevant factor. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d
801 (1973). Finally, a valid consideration is whether the surrounding
area is substantially commercial. Id.; Byers v. S.C. Alcoholic
Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
Without sufficient evidence of an adverse impact on the
community, a permit application must not be denied if the statutory criteria
are satisfied. The fact that the issuance of a permit is protested is not a
sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating
Liquors § 119 (1981). Moreover, the denial of a permit to an applicant on
the ground of unsuitability of location is without evidentiary support when
relevant testimony of those opposing the requested license or permit consists
entirely of opinions, generalities, and conclusions not supported by the facts.
Taylor, 261 S.C. at 171, 198 S.E.2d at 802.
c. Conclusions
After carefully weighing the evidence and applying the law as
discussed above, the court finds the proposed location to be suitable. The
area surrounding the proposed location is primarily, if not exclusively,
commercial. Other businesses in the area are permitted to sell beer, wine, or
liquor. No evidence was presented of law enforcement problems either at the
proposed location or in the surrounding area. Parking is adequate. Moreover,
the location was formerly licensed to sell beer and wine and no evidence was
introduced that shows that the location is less suitable than in the past.
The court is mindful of the proximity of the church to the
proposed location. However, the court notes that the church moved to its
current location when Vesuvio’s was permitted to sell beer, wine, or liquor and
chose its location with full knowledge that it was moving next door to a
location that was so licensed. Additionally, the court finds that Ms. Davis’s concerns,
though sincere, are simply too general and speculative to warrant denial of the
permit sought. For example, she spoke generally of children often being
present in the church parking lot and the proximity of the restaurant to the
church property. Similarly, while Ms. Davis expressed concerns about past
problems with littering by patrons of Vesuvio’s, she stated that the church did
not currently experience littering problems from patrons of Taqueria La
Estrella. Again, her fear that this would change if the permit were granted is
speculative.
The
court encourages Castillo to provide adequate trash receptacles outside the
restaurant and to take measures to ensure that his patrons do not leave the
restaurant with beer bottles that could potentially be thrown on church
property. The court also encourages Castillo to discourage his patrons from
parking on church property, especially since parking is adequate at the
restaurant. Further, in the interest of the safety of the children who might
be on church property as well as the public at large, the court advises
Castillo to be mindful of the prohibition on serving intoxicated persons and
the liability associated with allowing impaired customers to drive. See § 61-4-580(2); see, e.g., Tobias v. Sports Club, Inc., 332 S.C. 90,
504 S.E.2d 318 (1998) (holding that South Carolina’s alcohol control statutes
permit a third-party action against a tavern for injuries sustained at the
hands of an intoxicated adult patron). Finally, the court would remind
Castillo and the Protestant that if Castillo does not comply with the alcoholic
beverage laws, his permit can be suspended or revoked. See § 61-4-580.
Because
Castillo testified that he will continue to be a good neighbor to the church if
the permit is granted, and no evidence was introduced that indicates otherwise,
the court finds that, despite its proximity to the church, the nature and
operation of the business at this time renders the location a proper one.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that Castillo meets all of the statutory requirements
for the issuance of a beer and wine permit. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for an
on-premises beer and wine permit for the premises located at 3346 Ashley Phosphate Road, North Charleston, South Carolina 29418.
IT
IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
August 24, 2006
Columbia, South Carolina
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