ORDERS:
FINAL DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code
Ann. § 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1996) for
a hearing pursuant to the application of Sergia H. Santillan, Azteca Family Mexican Restaurant, Inc.,
d/b/a Azteca Family Mexican Restaurant ("Applicant" or "Petitioner") seeking an on-premises beer
and wine permit (AI 113254) for the premises located at 1200 North Pleasantburg Drive, Greenville,
Greenville County, South Carolina ("location").
A hearing was held on July 7, 1997, at the Anderson County Courthouse, Anderson, South
Carolina by Marvin F. Kittrell, Chief Judge of the Administrative Law Judge Division ("Division").
The issue considered was the suitability of the proposed location.
The application was protested by Bob Jones University ("Bob Jones"), Shepherd's Gate, a
department of Miracle Hill Ministries, Inc. ("Miracle Hill") and Mr. and Mrs. Gil Button of Carolina
Fabric and Upholstery, all of Greenville, South Carolina. Testifying at the hearing in opposition to
the issuance of the beer and wine permit were Roy A. Barton, Chief Financial Officer of Bob Jones
University, Dr. Darla Reese, a psychologist and counselor with Shepherd's Gate and Reid David
Lehman, Executive Director of Miracle Hill. When a permit for the sale of beer and wine for on-premises or off-premises consumption is protested, a hearing is authorized on the matter with
jurisdiction to conduct the hearing vested in the Division. The South Carolina Department of
Revenue ("Department") asserted in its Motion to Be Excused dated May 16, 1997, that there was
no controversy between the Petitioner and the Department and that the sole issue was the question
of the suitability of the location based upon the filed protests. The Department's Motion to Be
Excused from appearing at the hearing was granted by Order dated May 28, 1997. Further, the
Motion to Intervene filed by Shepherd's Gate was granted by Order signed on June 23, 1997.
The application request is granted.
EXHIBITS
Certified copies of documents forwarded to the Administrative Law Judge Division from
the Department are made a part of the record. Also, the Petitioner placed into the record twenty-nine
(29) photographs and a petition consisting of 18 pages of signatures of individuals who are in favor
of the permit issuance. The Intervenor placed into the record a sketch of the proposed location, a
brochure and seven (7) photographs.
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 and the protestants
and the Intervenor, as well as having personally viewed the location after the hearing, I make the
following Findings of Fact by a preponderance of evidence:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place, and subject matter of the hearing was timely given to
all parties, the protestants and the Intervenor.
3. Petitioner is seeking an on-premises beer and wine permit for a Mexican restaurant
located at 1200 North Pleasantburg Drive, Greenville, Greenville County, South Carolina. The
Petitioner had originally filed its application asking for an on-premises beer and wine permit and an
business sale and consumption (minibottle) license. However, it withdrew its request for the
business sale and consumption (minibottle) license on May 5, 1997.
4. The location fronts a four lane highway (North Pleasantburg) which is a major
thoroughfare in the city of Greenville. Across the highway is the rear boundary of Bob Jones. Up
and down the highway are commercial businesses of all types, including restaurants such as the Red
Lobster. Residential communities and subdivisions are located behind the commercial
establishments. 5. The proposed location was purchased by the Petitioner in 1996 for the
sum of $350,000. Further, the Petitioner has spent an additional $150,000 on the property through
the purchase and installation of equipment and remodeling the interior. Photographs of the location
reflect that there is ample parking for the customers and patrons at the location.
6. The restaurant will seat eighty-four (84) people.
7. The restaurant was opened for business as a family restaurant for the sale of Mexican
food by the Petitioner in November 1996 and has sold food to some of the protestants/Intervenors.
Many of the patrons of the restaurant have requested beer, wine or mixed drinks as a beverage when
ordering their food.
8. The Red Lobster restaurant, which sells beer and wine and liquor for on-premises
consumption, is located at the intersection of North Pleasantburg highway and Highway 29, several
blocks from the location. Gas stations/convenience stores in the general area, as well as several
grocery stores, sell beer and wine for off-premises consumption.
9. There is no bar in the restaurant nor are there any plans for the installation of such.
10. Directly behind the location is a two story building which houses Shepherd's Gate.
It is accessed from Regency Hills Drive. Shepherd's Gate is a temporary, emergency shelter for
homeless women and their families. It has fifty-four (54) beds. It is a division of Miracle Hill
Ministries, Inc. Residents admitted on an emergency basis initially stay at the shelter for three (3)
days. An average length of stay is twenty-three (23) days. While there they attend classes and
church services.
11. Shepherd's Gate depends heavily on volunteers to assist in its program; many of these
volunteers come from Bob Jones which is across North Pleasantburg Drive.
12. There is an enclosed metal walkway crossing North Pleasantburg Drive from Bob
Jones. It exits at a business next to the location. The more direct route for these Bob Jones
volunteers to go to Shepherd's Gate is by walking across this property next to the proposed location.
13. Most, if not all of the women who seek emergency shelter at Shepherd's Gate, do so
because of physical abuse or a drug and/or alcohol problem at home. Ninety nine (99 %) percent of
the women who seek this shelter are over twenty one (21) years of age.
14. The concern of the Intervenor is that of the safety and security of the women who seek
this shelter. The Intervenor feels that the behavior of patrons at the restaurant who consume beer
and/or wine would place an element of fear and uncertainty in its clients and slow their recovery
process. The location is presently kept secure and staff persons chaperone the clients there. Even
so, the Intervenor is concerned that the closeness of the location may somehow create a harm to the
well-being of these women and provide a haven for their abusive husbands or friends.
15. Petitioner has offered to construct a wooden fence across its rear boundary as a barrier
between its customers and Shepherd's Gate. The Intervenor has declined this offer and does not
want such a fence or barrier to be constructed.
16. The Intervenor has an excellent relationship with the police department of the City
of Greenville which provides protection to Shepherd's Gate and its clients even though it is located
outside the city limits of Greenville. The city limits boundary line is the same rear boundary
separating the properties of the Petitioner and the Intervenor. See Intervenor Exhibit # 3.
17. The campus of Bob Jones is located across North Pleasantburg Drive from the
location. There are approximately seven thousand (7,000) students enrolled at the university. The
university does not permit its students, faculty or staff to drink beer, wine or alcoholic beverages of
any kind. Its rear gate is approximately one hundred and fifty feet (150') from the front door of the
restaurant. Its students, faculty and staff frequent the various stores and commercial establishments
along North Pleasantburg Drive. A concern of Bob Jones is that patrons at the restaurant may
consume beer and /or wine in excess and when leaving the restaurant, may cause harm to the
students or others in the vicinity.
18. Petitioner is employed at the proposed location and intends to continue to work there.
19. Petitioner was born on July 25, 1965 and is thirty-two (32) years of age. He lives at
702 Edwards Road, Greenville, South Carolina. He established his residency in South Carolina in
November, 1996.
20. Applicant has never had a beer and wine permit revoked.
21. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Greenville News, a newspaper of general circulation in the local area where the
Petitioner proposes to engage in this business.
22. Notice of the application has been provided to the general public by the South
Carolina Law Enforcement Division through the posting of a sign for a minimum of fifteen (15)
days at the site of the proposed location.
23. Petitioner is of good moral character. He has no record of any criminal violations.
24. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 1996) concerning
the residency, age and moral character of the Petitioner are properly established as are the publication
and notice requirements.
25. The Greenville City Police Department did not protest the application request.
26. There are no public schools or playgrounds in close proximity to the proposed
location. Although school classes and church services are held on the campus of Bob Jones
University, all its property is fenced on all its perimeters and boundaries. Its staff, students and
faculty are well-protected from any outside influence or interference.
27. The Azteca Family Mexican Restaurant, Inc. was incorporated under the laws of the
state of North Carolina and has been issued a certificate of authority to do business in the state of
South Carolina by the Secretary of State.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1996) and Chapter 23 of Title 1 of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division is empowered to
hear this case and issue a Final Decision.
2. S.C. Code Ann. § 61-4-520 (Supp. 1996) which sets forth the requirements for the
issuance of a beer and wine permit, provides as follows:
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 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 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 eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
3. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
4. The preponderance of the evidence "is evidence which is of the greater weight or
more convincing than the evidence which is offered in opposition to it....". Black's Law Dictionary
1182 (6th Edition 1990). "The preponderance of the evidence means such evidence as, when
considered and compared with that opposed to it, has more convincing force and produces in the
mind the belief that what is sought to be proved is more likely true than not true." Sanders, Neese,
and Nichols, South Carolina Trial Handbook, section 9:5 Quantum of Evidence in Civil Cases
(1994), (citing Frazier v. Frazier, 228 S. C. 149, 89 S.E.2d 225 (1955).
5. Evidence has probative value "if it tends to prove an issue." Black's Law Dictionary
1203 (6th ed. 1990).
6. A trial judge, who observes the witness, is in the better position to judge his demeanor
and veracity and evaluate his testimony. See 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); 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).
7. Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact (judge) in determining the fitness or suitability of a particular location. Fast Stops, Inc.
v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
8. 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.
9. 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. South
Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge 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). Also, the judge can consider the proximity or the absence
of other licensed locations in the immediate vicinity and the existence of students and small children
in the area.
10. With the consent of all parties, I viewed the subject location on July 16. However,
the viewing of the location was not considered as evidence in the case. Rather, the purpose of
viewing a location is simply to assist the finder of fact in better understanding the evidence which
has been presented in the courtroom. See State v. Mouzon, Op. No. 24623 (S.C. Sup. Ct. filed May
27, 1997)(Davis Adv. Sh. No. 15 at 20).
11. In considering suitability of location, it is relevant to consider previous history of the
location and to determine whether the testimony in opposition to a permit consists of opinions and
conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
12. In this case, the protestant and Intervenor have addressed several concerns which
must be considered by this tribunal. A thorough consideration of those concerns requires that the
permit as requested for the on-premises sale and consumption of beer and wine should be granted.
Although there are numerous residences in the area, they are located behind the commercial
establishments and are not affected. No residents in the area have raised any objections to the
issuance of the permit. The major concerns are of danger to the clients at the Shepherd's Gate
facility and the potential danger to people in the neighborhood from patrons leaving the restaurant
who may be in an intoxicated condition. A denial of the permit because of its potential as a haven
for jealous or abusive boyfriends or husbands would be based on speculation and conjecture. There
are other commercial locations which adjoin the Shepherd's Gate property in which these individuals
may park, observe its facility or access the facility. There is no fence around the facility. It is easily
accessible from many directions including Regency Hills Drive.
With regard to the concern of patrons leaving the location in an inebriated condition and
subsequently causing harm to residents or vehicular occupants in the community, if a trier-of-fact
denied permits upon such a basis, all could be denied. There is a burden and responsibility on the
consumer of alcoholic beverages not to drink to excess and also upon management of
licensed/permitted locations to limit consumption, or provide assistance to those under the
influence. I find that the objections raised by the protestant and the Intervenor are not sufficient
to show that the location is unsuitable. The evidence presented by the protestant and the Intervenor
does not rise to the level to show a detriment to the community. There is no evidence that the grant
of the permit would create any hazardous or congested traffic conditions and/or safety concerns to
the citizens in the general area. Further, there has been no evidence of any law enforcement
problems at the location in the past or that the issuance of the permit would create such in the future.
In fact, the evidence shows that law enforcement works closely with the staff at Shepherd's Gate and
provides protection to its clients. Although this tribunal is particularly concerned with protecting
the safety and well-being of citizens in the community in which they live, it must weigh all the facts
and evidence and allow the issuance of permits and licenses where there is no credible evidence for
their denial.
13. Permits and licenses issued by this state for the sale of liquor, beer and wine are not
property rights. Rather, they are privileges granted in the exercise of the state's police power to be
used and enjoyed only so long as the holder complies with the restrictions and conditions governing
them. The Administrative Law Judge, as the trier of fact authorized to grant the issuance of a permit,
may likewise 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. S.C. Code Ann. § 61-4-540 (Supp. 1996) states that upon a determination that an
applicant meets the requisite qualifications and conditions, is a fit person and the proposed place of
business is a proper one, absent sufficient evidence of an adverse impact on the community, the
department must issue the permit after payment of the fees as required by law. The fact that a
permit or license is protested is not a sufficient reason by itself to deny the application. See 45 Am.
Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C. J. S. Intoxicating Liquors § 119 (1981).
15. Standards for judging the suitability of a proposed location for the sale of beer, wine
or liquor are not determined by a local community's religious convictions. Criteria must be uniform,
objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful
enterprise in South Carolina, regulated by the State.
16. I conclude that the Petitioner has met his burden of proof in showing that he meets
all of the statutory requirements for holding an on-premises beer and wine permit at the location.
I further conclude that the proposed location is a proper one for granting the permit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Sergia H. Santillan, Azteca Family Mexican Restaurant,
Inc., d/b/a Azteca Family Mexican Restaurant for an on-premises beer and wine permit for the
restaurant located at 1200 North Pleasantburg Drive, Greenville, Greenville County, South
Carolina, is granted, and it is further
ORDERED that the Department shall issue the permit to the Petitioner upon his compliance
with the requirements of S.C. Code Ann. § 61-2-160 (Supp. 1996) and upon Petitioner's payment
of the required fees and costs.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
August 5, 1997 |
