ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2000) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2000) upon filing of an application by Petitioner, Garcia Mexican, Inc., d/b/a Fiesta
Brava ("Petitioner") for an on-premise beer and wine permit and business mini-bottle license for a location at
611 E. Maynard Street, Pageland, South Carolina. Upon receipt of written protests to the application, the
South Carolina Department of Revenue ("Department") transmitted the case to the Administrative Law Judge
Division ("ALJD") for a hearing. After timely notice to the parties and Protestants, a contested case hearing
was held on August 9, 2001, at the ALJD in Columbia, South Carolina. Testifying on behalf of the
Protestants were Rachael S. Stucker and Rita Mungo. Terry Noel and wife, Alice Noel, are the operators of
Fiesta Brava. Terry Noel testified in support of the application. Upon review of the relevant and probative
evidence and applicable law, the application for an on-premise beer and wine permit and business mini-bottle
license are granted subject to restrictions.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking
into account the credibility and accuracy of the evidence, I make the following findings of fact by a
preponderance of the evidence.
- Notice of the time, date and place of the hearing was given to the Petitioner,
Protestants, and Department.
2. Terry Noel, on behalf of Fiesta Brava, seeks an on-premises beer and wine permit
and business mini-bottle license for the proposed location of 611 E. Maynard Street, Pageland, South
Carolina.
3. The Department moved to be excused from appearing at the hearing on the
ground that it would have granted the permit and license but for the unanswered question of the suitability of
the proposed location. Said motion was granted.
- There are no schools, churches, or playgrounds located within five hundred (500)
feet of this location.
5. Fiesta Brava is currently operating at the proposed location as a Mexican
restaurant.
6. The proposed location is situated in a primarily commercial area. Bojangles,
Subway, Pizza Hut and Kentucky Fried Chicken are a few of the businesses within close proximity of the
proposed location.
7. Rachael Stucker, a resident of Pageland, testified in opposition of the issuance of
a mini-bottle license. However, Stucker did not testify in opposition of the issuance of the beer and wine
permit. Stucker testified on behalf of the Protestants and stated several of their concerns. The Protestants
feel the area of the proposed location is too congested to introduce a restaurant that serves liquor. The
proposed location is situated on Maynard Street and is nearby the intersection of Highway 9 and Highway
151. Stucker testified that there is heavy traffic on Highway 151, especially during summer months because
it is a main route to Myrtle Beach, South Carolina. She testified that Central High School is several miles
away, however, students travel Maynard Street and Highway 151 to go to school and to return to their homes.
Stucker stated that New Covenant School and Day Care and Pageland Care Center were located nearby.
However, on cross examination, Stucker testified that she was aware that all churches, daycare facilities and
schools are located at least five hundred (500) feet from the proposed location. The Protestants feel the
proposed location does not have adequate outside lighting.
8. Rita Mungo, a resident of Pageland, testified that she is concerned about potential
automobile accidents occurring in the area due to the sale of alcohol at the proposed location. Mungo is the
mother of a two-year old and a six-year old child and feels their safety will be threatened if intoxicated drivers
are traveling the highway.
- Terry Noel, an operator of Fiesta Brava, testified that he does not intend to have a
bar atmosphere at the restaurant. In fact, there is no bar at the restaurant. Instead, the restaurant only has a
dining area. Noel stated the restaurant is family oriented, will remain that way if the licenses are issued, and
will not offer alcohol for sale on Sunday. Noel would like to serve beer, wine and margaritas to his
customers. Noel feels margaritas are essential in providing a complete Mexican dining experience. He
testified that there would be no loud music or juke box at the restaurant. He will provide a full lunch and
dinner menu.
- Though the evidence offered raises "potential" concerns that this business would
create an overall adverse impact on the community, the evidence did not establish that the granting of the
permit or license for this location will have an overall adverse impact on the community. If that change
occurs after the Petitioner receives the permit and license, the proposed location would no longer be suitable
and the Department could properly bring an action to revoke the Petitioner's permit and license.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000), S.C. Code Ann. § 1-23-600(B) (Supp. 2000) and
S.C. Code Ann. § 1-23-310 et seq. (Supp. 2000) the South Carolina Administrative Law Judge Division has
jurisdiction in this matter.
2. S.C. Code Ann. § 61-4-520 (Supp. 2000), which sets forth the requirements for the issuance of a beer and
wine permit, provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1) The applicant, any partner of co-shareholder of the applicant, and each agent, employee and servant of the
applicant to be employed on the licensed premises, are of good moral character.
2) The retail 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 application, and has maintained his principal place of abode in the State for at
least thirty days before the date of application.
3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State
for at least thirty days before the date of application and has maintained his principal place of abode in the
State for at least thirty days before the date of application or has been licensed previously under the laws of
this State.
4) The applicant, within two years before the date of application, has not had revoked a beer or wine permit
issued to him.
5) The applicant is twenty-one years of age or older.
6) The location of the proposed place of business of the applicant is in the opinion of the department a proper
one.
7) The department may consider, among other factors, as indications of unsuitable location, the proximity to
residences, schools, playgrounds and churches. This item does not apply to locations licensed before April
21, 1986.
8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most
likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to
engage in business. The department must determine which newspapers meet the requirements of this section
based on available circulation figures. However, if a newspaper is published in the county and historically
has been the newspaper where the advertisements are published, the advertisements published in that
newspaper meet the requirements of this section . An applicant for a beer and wine permit and an alcoholic
liquor license may use the same advertisement for both if the advertisement is approved by the department.
9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign
must:
(a) state the type of permit sought;
(b) state where an interested person may protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
3. S.C. Code Ann. § 61-6-1820 (Supp. 2000), which sets forth the requirements for the issuance of a sale and
consumption ("mini-bottle") license, provides as follows:
The Department may issue a license under subarticle 1 of this article upon finding:
1) The 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.
2) The applicant, if an individual, is of good moral character or, if a corporation or association, has a
reputation for peace and good order in its community, and its principals are of good moral character.
3) As to business establishments or locations established after November 7, 1962, § 61-6-120 has been
complied with.
4) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most
likely to give notice to interested citizens of the county, municipality, or community in which the applicant
proposes to engage in business. The department shall determine which newspapers meet the requirements of
this section based on available circulation figures. However, if a newspaper is published within the county
and historically has been the newspaper where the advertisements are published, the advertisements published
in that newspaper meet the requirements of this section. An applicant for a beer and wine permit and an
alcoholic liquor license may use the same advertisement for both if it is approved by the department.
5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign
must:
(a) state the type of license sought;
(b) tell an interested person where to protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
6) The applicant is twenty-one years of age or older.
7) The applicant is a legal resident of the United States, has been a resident of this State for at least thirty days
before the date of application, and has maintained his principal place of abode in this State for at least thirty
days before the date of application.
8) The applicant has not been convicted of a felony within ten years of the date of application.
4. S. C. Code Ann. § 61-6-120 (Supp. 2000) provides that a liquor license shall not be issued if the place of
business to be licensed is located within three hundred feet of any church, school, or playground situated
within a municipality, or within five hundred feet of any church, school, or playground situated outside of a
municipality. No churches, schools or playgrounds are located within the prescribed proximity to render the
proposed location unsuitable based on this distance requirement.
5. A license for the sale and consumption of alcoholic beverages must not be granted unless the location will
be operated either as a bona fide non-profit organization or the licensee intends to conduct a bona fide
business engaged primarily and substantially in food preparation and service or the furnishing of lodging.
6. S.C. Code Ann. § 61-6-20 (2) and (4) (Supp. 2000), which define a bona fide business engaged primarily
and substantially in the preparation and serving of meals or furnishing of lodging, read in part as follows:
As used in the ABC Act, unless the context clearly requires otherwise:
* * *
(2) "Bona fide engaged primarily and substantially in the preparation and serving of meals" means a business
which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this
chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for
the service of meals.
(4) "Furnishing lodging" means those businesses which rent accommodations for lodging to the public on a
regular basis consisting of not less than twenty rooms.
The Petitioner is applying for a liquor license at a location which will be engaged primarily in the preparation
and serving of food.
7. S.C. Code Ann. Regs. § 7-19 defines "restaurants" as follows:
A. Any business establishment that applies for or holds a sale and consumption license pursuant to § 61-5-20
(4) (now §§ 61-6-20, 61-6-1600, 61-6-1610, 61-6-1620, 61-6-2200, 61-6-2210, 61-6-4020 and 61-6-4710) of
the Code and is not engaged in the furnishing of lodging, must:
1. Be equipped with a kitchen that is utilized for the cooking, preparation, and serving of meals; and
2. Have readily available to its guests and patrons either "menus" with the listings of the various meals
offered for service or a listing of available meals and foods, posted in a conspicuous place readily discernible
by the guest or patrons; and
3. Prepare for service to customers hot meals at least once each day the business establishment chooses to be
open.
4. If such establishment advertises, a substantial portion of its advertising must be devoted to its food
services.
This court finds that the Petitioner has complied with the provisions of this regulation and § 61-6-20 (Supp.
2000).
8. A license may not be issued pursuant to S.C. Code Ann. § 61-6-910 (Supp. 2000)
if : (1) the applicant is not a suitable person to be licensed; (2) the store or place of business to be occupied by
the applicant is not a suitable place; or (3) a sufficient number of licenses have already been issued in the
State, incorporated municipality, unincorporated municipality or other community.
9. The Petitioner and its agent, Terry Noel, have met the qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2000), concerning residency, age, moral requirements, criminal convictions,
reputation for peace and good order in its community, as well as the publication and notice requirements.
10. 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 or suitability of the proposed business location of an applicant for a permit to sell beer
and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of
witnesses and determine the relevance and weight of any testimony and evidence offered.
11. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in
determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281
S.E.2d 118 (1981). 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). Any evidence adverse to the location may be considered. The proximity of a
location to a church, school or residences is a proper ground by itself, on which the location may be found to
be unsuitable and a permit denied. Byers v. S. C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).
Further, the court can consider whether "there have been law enforcement problems in the area." Palmer v.
S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
12. 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 by itself to deny the application. See 45 Am.Jur. 2d Intoxicating Liquors § 162 (Supp.
1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
- Permits and licenses issued by the State for the sale of liquor, beer, and wine are
not rights or property, but are rather privileges granted in the exercise of the police power of the State to be
used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the
tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is
likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax
Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
14. A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by
revocation or suspension of the permit or license pursuant to S.C. Code Ann. §§ 61-4-580 and 61-6-1830
(Supp. 2000).
15. S.C. Code Ann. § 61-2-160 (Supp. 2000) prohibits the issuance, renewal or transfer of a permit or license
under Title 61 if the applicant owes state or federal government delinquent taxes, penalties or interest.
16. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory
requirements for holding a retail beer and wine permit and a sale and consumption ("mini-bottle") license as a
restaurant at the location. I further conclude that the proposed location is a proper one for granting the permit
and licenses, subject to the following restrictions which must be stipulated to:
RESTRICTIONS
1. The Petitioner and its employees shall maintain proper lighting around the proposed location.
2. The Petitioner and its employees shall prohibit loitering and the consumption of beer, wine or liquor by
the patrons/customers in the parking lot area of the proposed location.
3. Consistent with Fiesta Brava's sample menu and as stipulated by Petitioner, liquor sales at
Fiesta Brava are limited to margaritas and daiquiries only. ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that Petitioner's application for an on-premises beer and wine permit and a business sale and
consumption ("mini-bottle") license as a restaurant for its location at 611 E. Maynard Street, Pageland, South
Carolina is granted upon payment of all fees and statutory requirements.
IT IS FURTHER ORDERED that the permit and license shall only be issued by the Department upon the
Petitioner's signing a written agreement to be filed with the Department to adhere to the restrictions set forth
above.
IT IS FURTHER ORDERED that a violation of any of the above conditions will be considered a violation
against the permit and license and may result in a fine, suspension, or revocation of the permit and license.
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
September 12, 2001
Columbia, South Carolina |
