ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (“Division”) pursuant to
S.C. Code Ann. §§ 61-2-260 and 1-23-600 (Supp. 2002) for a contested case hearing. Adriana
Davalos, d/b/a el Rancho Grande Mexican Restaurant, 300 S. Line Street, Greer, South Carolina,
(“Applicant/Petitioner”) seeks an on-premises beer and wine permit (“permit”) and a sale and
consumption (minibottle) license (“license”).
Pastor Ken Vickery from Victor Baptist Church in Greer, South Carolina (“Protestant”), filed
a protest to the application with the South Carolina Department of Revenue (“Department”).
Because of the protest, the hearing was required. The Department filed a Motion to be Excused
setting forth that but for the protest, this permit and license would have been issued. However, this
motion was denied.
A hearing was held on September 15, 2003, at the offices of the Division at 1205 Pendleton
Street, Columbia, South Carolina. Both parties appeared or were represented at the hearing. Ray
DeYoung and Bennett Cudd, both members of Victor Baptist Church, appeared as representatives
for the Protestant. Evidence was then introduced and testimony was given. After carefully weighing
all the evidence, this tribunal finds that the on-premises beer and wine permit and minibottle license
should be granted with the sole restriction that the restaurant be closed on Sundays.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the evidence
presented at the hearing and taking into consideration the burden of persuasion by the Petitioner and
the Protestant, I make the following findings of fact by a preponderance of the evidence:
1. The Division has personal and subject matter jurisdiction.
2. Notice of the time, date, place, and nature of the hearing was given to all parties and
Protestants.
3. Petitioner, Adriana Davalos, d/b/a El Rancho Grande Mexican Restaurant, applied
for an on-premises beer and wine permit and sale and consumption (minibottle) license for the
premises located at 300 S. Line Street, Greer, South Carolina (“location”), which is located inside
the city limits.
4. Applicant is over the age of twenty-one.
5. Applicant, a Mexican citizen, has been a legal resident of the state of South Carolina
for the past three years, and has maintained her principal place of abode in the State of South Carolina
for the same length of time.
6. Applicant is of good moral character and has never been convicted of a crime.
7. Notice of this application appeared at least once a week for three consecutive
weeks in The Greenville News, a newspaper of general circulation in the local area where the
Petitioner would operate. Notice of the application was also given by displaying a sign for a
minimum of fifteen (15) days at the location.
8. The location is a restaurant primarily engaged in the preparation and serving of meals.
It has been open since June 2002 and currently operates from 11:00 a.m. to 10:00 p.m. Monday
through Saturday. The location is closed on Sunday. There is no bar at the location, and all alcoholic
drinks would be consumed in the dining area with meals.
9. Applicant currently holds a beer and wine permit and minibottle license for another
restaurant that she operates in Pelzer, South Carolina. Applicant has never had a beer and wine
permit or minibottle license revoked.
10. There are no churches, schools, or playgrounds within three hundred feet of the
proposed location; however, Victor Baptist Church, which is located approximately 660 feet from
the location protested the issuance of this permit and license.
11. Protestant Ray DeYoung, who is a member of Victor Baptist Church, testified that
he is concerned about the safety of church members who must cross S. Line Street from the parking
area to get to the church. Mr. DeYoung is concerned that the issuance of this permit and license
would result in a higher chance of church members being struck by an intoxicated driver when
crossing the street. In addition, Protestant testified that he is against the sale of alcohol due to
religious beliefs.
12. There is currently a gas station located approximately the same distance from the
Victor Baptist Church as this location that sells beer and wine for off-premises consumption.
13. The proposed location is suitable for the sale of minibottles and beer and wine on
premises with the restriction that the location be closed for business on Sundays.
CONCLUSIONS OF LAW
Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
2. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and Chapter 23 of Title 1 of
the 1976 Code, as amended, the South Carolina Administrative Law Judge Division has jurisdiction
in this matter.
3. 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 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).
4. S.C. Code Ann. § 61-4-520 (Supp. 2002),amended June 25, 2003, by Act 70 of
2003, which sets forth the requirements for the issuance of a beer and wine permit, provides:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner or 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 a 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 shall 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. The notice must:(a) be in the legal notices section of the newspaper or an equivalent section if the newspaper
has no legal notices section;
(b) be in large type, covering a space of one column wide and at least two inches deep;
and
(c) state the type license applied for and the exact location of the proposed business.
An applicant for a beer or 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 twelve inches high and
eighteen inches wide;
(e) be posted and removed by an agent of the division.
5. S.C. Code Ann. § 61-6-1820 (Supp. 2002), amended June 25, 2003, by Act 70 of
2003, which sets forth the requirements for the issuance of a sale and consumption (“minibottle”)
license, provides in part:
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, Section 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 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. The notice must:
(a) be in the legal notices section of the newspaper or an equivalent section if the newspaper
has no legal notices section;
(b) be in large type, covering a space of one column wide and at least two inches deep; and
(c) state the type license applied for and the exact location of the proposed business.
An applicant for a beer or 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) state where an interested person may protest the
application;
(c) be in bold type;
(d) cover a space at least twelve inches high and
eighteen inches wide;
(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.
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.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 a
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).
8. 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. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).9.Unless there is sufficient evidence of an adverse impact on the community, the
application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects
to the issuance of a permit is not 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).
10. Permits and licenses issued by the State of South Carolina for the sale of liquor, beer,
and wine are not property rights, but are privileges granted in the exercise of the police power of this
state to be used and enjoyed only so long as the restrictions and conditions governing them are
complied with. The Administrative Law Judge Division, 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 Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
11. Furthermore, S.C. Code Ann. Regs. 7-200.1(I) (effective June 27, 2003) authorizing
the imposition of restrictions on permits, provides:
Any written stipulation and/or agreement which is voluntarily entered into by an
applicant for a permit or license between the applicant and the Department, if
accepted by the Department, will be incorporated into the basic requirements for the
enjoyment and privilege of obtaining and retaining the permit or license and shall have
the same effect as any and all laws and any and all other regulations pertaining to the
permit or license.
Knowing violation of the terms of the stipulation or agreement shall constitute
sufficient grounds to revoke said license.
12. With the restriction that the location be closed on Sunday, Applicant meets the
statutory requirements for holding a minibottle license and an on-premises beer and wine permit at
the proposed location. Applicant holds a beer and wine permit and minibottle license at another
location, and she has had no alcohol violations at that location. Applicant’s husband also operates
a mexican restaurant in Traveler’s Rest for which he holds a minibottle license and beer and wine
permit for on-premises consumption. In addition, all alcoholic beverages at this location will be
consumed on-premises while dining. Furthermore, there is no credible support that customers at the
location will become intoxicated and create problems for members of Victor Baptist Church.
ORDER
IT IS HEREBY ORDERED that the application for an on-premises beer and wine permit
and sale and consumption license for the location known as “el Rancho Grande Mexican Restaurant,”
located at 300 S. Line Street, Greer, South Carolina, is GRANTED in the name of Adriana Davalos
subject to the restriction that the location be closed on Sundays.
IT IS FURTHER ORDERED that the permit and license shall only be issued by the
Department upon Adriana Davalos signing a written statement to be filed with the Department to
adhere to the restriction set forth above.
IT IS FURTHER ORDERED that a violation of the above restriction shall 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.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
September 17, 2003
Columbia, South Carolina |
