ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999) on the
application of Manuel A. Bagtas d/b/a Manila Grill Lounge for an on-premises beer and wine permit and minibottle license
for a restaurant to be located at 7890 Dorchester Road, North Charleston, South Carolina. After notice to the parties and
Protestant, a hearing was conducted on June 6, 2000. Based upon the evidence presented regarding the suitability of the
location, this tribunal finds the nature of the area in which the restaurant is to be located suitable for a beer and wine permit
and minibottle license. Any motions or issues raised in the proceedings but not addressed in this Order are deemed denied
pursuant to ALJD Rule 29(C).
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this case, and taking into
account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the
evidence:
1. On or about February 22, 1999, Petitioner, Manuel A. Bagtas, submitted an application for an on-premises beer and wine
permit and a bona fide restaurant minibottle license to the South Carolina Department of Revenue for the premises located at
7890 Dorchester Road, North Charleston, South Carolina. Petitioner's application is incorporated into the record by
reference.
2. Petitioner leases the proposed location from B.S. Minton, Inc. Since 1987, one proprietor or another has operated a
business at this location under a beer and wine permit.
3. Petitioner has no criminal convictions and is a person of good moral character.
4. Petitioner is a legal resident of the United States.
5. Petitioner has resided in and maintained his principal place of abode in South Carolina for more than thirty days before
applying for a permit and minibottle license.
6. Petitioner has never been cited for any violations of the alcoholic beverage control laws and has never had any permit to
sell beer and wine or alcoholic liquors suspended or revoked.
7. Petitioner is over twenty-one years of age.
8. Notice of application for the beer and wine permit and minibottle license was published in The North Charleston News on
March 3, 10, and 17, 1999. Notice was also posted at the proposed location for the time-period required.
9. Glenn A. Gillespie opposes the issuance of the permit and license in question on the grounds that the proposed location is
unsuitable because of its proximity to his subdivision and because of the littering which occurred during its operation. He
claims that both of these jeopardize his quality of life.
10. But for the protest, the Department would have issued the beer and wine permit and minibottle license, upon Petitioner's
satisfaction of all statutory criteria.
11. The proposed location is in a strictly commercial area, situated directly off of Dorchester Road, a four-lane major
thoroughfare.
12. There are no churches, schools, or playgrounds within close proximity to the proposed location. The main entrance to
Protestant's subdivision is over 1000' from the proposed location.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1999),
S.C. Code Ann. § 1-23-600(B) (Supp. 1999) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 1999).
2. "[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. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
3. S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1999), respectively, establish the criteria for the issuance of a beer
and wine permit and minibottle license. Although the suitability of the proposed location is not listed in § 61-6-1820 as a
condition of licensing, such a consideration is proper. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
4. Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining
the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5. 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); Schudel v. S.C. ABC Comm'n, 276 S.C.
138, 276 S.E.2d 308 (1981).
6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows
adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282
S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
7. "The proximity of a location to a church, school or residence is a proper ground by itself, on which the [trier of fact] may
find the location to be unsuitable . . . ." See Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992);
Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
8. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v.
Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best
position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481,
299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct.
App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
9. This tribunal is respectful of Protestant's sentiments concerning the issuance of the permit and license in question.
Nevertheless, there was no sufficient evidentiary showing that the present location is unsuitable or that the issuance of a beer
and wine permit or minibottle license would affect residents' safety, create traffic problems, or have an adverse impact on the
community.
10. The denial of a license or 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 facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972).
11. I find the location to be suitable for the issuance of a beer and wine permit and a minibottle license due to the commercial
nature and array of businesses in the area in which it is to be situated.
12. Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit. The Department shall continue to process Petitioner's application for a minibottle license.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the Department shall issue to Petitioner an on-premises beer and wine permit for the aforementioned
location and shall continue to process Petitioner's application for a minibottle license.
AND IT IS SO ORDERED.
___________________________
JOHN D. GEATHERS
Administrative Law Judge
June 7, 2000
Columbia, South Carolina. |
