ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-1-55, et seq. (Supp. 1993) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1993) for a
contested case hearing. The Applicant, Mary K. Deluna, seeks an on-premise beer and wine permit
for La Taqueria Ranchera. A hearing was held on March 30, 1995, at the office of Administrative
Law Judge Division, 1205 Pendleton Street, Columbia, South Carolina.
The application requested by the Petitioner is denied.
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 or Protestants, I
make the following Findings of Fact by a preponderance of evidence:
1. This division has subject matter jurisdiction of this case.
2. The Applicant seeks an on-premise beer and wine permit for La
Taqueria Ranchera at 311 New Cut Road, Spartanburg County.
3. Notice of the time, date, place and subject matter of the hearing was
given to the Applicant, Protestants, and South Carolina Department
of Revenue.
4. The qualifications set forth in S. C. Code Ann. § 61-9-320 (Supp.
1993) concerning the residency and age of the Applicant are properly
established. Furthermore, the Applicant has not had a permit or
license revoked within the last two years and notice of the application
was lawfully posted both at the location and in a newspaper of general
circulation
5. The Applicant's business is located on a heavily traveled, two-lane
paved road. The location is near an intersection where five roads
come together. There is a local residential area nearby in which the
residents walk from the neighborhood to the local stores in the area.
Children often walk along these roads with either their parents or by
themselves. This location is not suitable for these reasons because it
would create additional traffic that may endanger the individuals
walking along the roadways.
6. The Applicant's business is located approximately 126 feet from
Northside Baptist Church. Moreover, this church has a "prophets
chamber" in which missionaries and their families stay approximately
7 - 10 days a month. This prophets chamber is located only 50 feet
away from the Applicant's proposed location. Additionally, between
the proposed location and the prophets chamber is a parking lot in
which missionary's children often play. Therefore, the proposed
location is unsuitable because it is located too near the church and the
prophets chamber.
7. The proposed location has a parking lot which is located very close to
New Cut Road. Parking in that area would create a traffic hazard on
New Cut Road.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude as a matter of law the following:
1. Section 1-23-600 S.C. Code Ann. (Supp. 1993) grants jurisdiction to
the Administrative Law Judge Division to hear contested cases under
the Administrative Procedures Act.
2. Section 61-1-55 S.C. Code Ann. (Supp. 1993) grants to the
Administrative Law Judge Division the powers, duties and
responsibilities as hearing officer in protested and contested matters
governing alcoholic beverages, beer and wine.
3. Section 61-9-320 S.C. Code Ann. (Supp. 1993) sets forth the
requirements for the issuance of an on-premise beer and wine permit
and a sale and consumption license.
4. As trier of fact, an Administrative Law Judge is authorized to
determine the fitness or suitability of the proposed location of an
applicant for a permit or license to sell alcohol, beer or wine using
broad but not unbridled discretion. Byers v. S. C. ABC Commission,
316 S.E. 2d 705 (S.C. App. 1984).
5. The determination of suitability of a location is not necessarily a
function 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 located. Kearney v. Allen,
287 S.C. 324, 338 S.E. 2d 335 (1985).
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED AND ADJUDGED that the application of Mary Deluna for an on-premise beer
and wine permit be denied.
________________________________
Ralph King Anderson, III
Administrative Law Judge
April 25, 1995
Columbia, South Carolina |
