ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 &
Supp. 1997) and S.C. Code Ann. § 61-2-260 (Supp. 1997) upon the filing of an application
(AI#118339) by Petitioner for an on-premises beer and wine permit for a location at 970 E.
Carolina Avenue, Clinton, South Carolina. Upon receipt of written protests to the application,
the South Carolina Department of Revenue ("DOR") transmitted the case to the Administrative
Law Judge Division for a hearing. The contested case hearing was conducted on April 24,
1998, at the ALJD in Columbia, South Carolina. Testifying at the hearing in protest of the
proposed location were Rev. Willie McCurry and Charles Fallow. Catarino Lazano, co-owner of
the proposed location, testified in support of the application. Upon review of the relevant and
probative evidence and applicable law, I find the proposed location is suitable and grant the
application for an on-premises beer and wine permit.
DISCUSSION
Opposition to the new application is based primarily upon the proposed location's
proximity to a church and the moral or religious opposition to alcohol by the church's pastor and
congregation. The Court respects the right of an individual or a congregation to abstain from
the purchase and consumption of alcohol and to not be disturbed by those who do choose to buy
and drink beer, wine, or liquor. Standards for judging the suitability of a proposed location for
the sale of beer and wine, however, are not determined by a local community's religious
convictions or moral litmus test. Criteria must be uniform, objective, constant, and consistent
throughout the state. The sale of beer and wine is a lawful enterprise in South Carolina, as
regulated by the State, and each individual location seeking issuance of a permit must be
examined using all legal criteria. This Court must determine to issue or deny a beer and wine
permit based solely upon the relevant facts and the applicable law.
In this case, Protestants testified that their church is in the process of attempting to
purchase the shopping center in which the proposed location is located. If that occurs, the
church will become the landlord and will be able to restrict the use of the proposed location to
include a prohibition on the sale or service of beer and wine and/or to terminate Petitioner's
lease of the proposed location. In such case, this controversy will be moot. In the meantime,
based upon the evidence presented, the permit should be issued.
FINDINGS OF FACT
By the preponderance of the evidence, I make the following Findings of Fact:
Petitioner seeks an on-premises beer and wine permit for a location at 970 E.
Carolina Avenue, Clinton, South Carolina, having filed an application (AI #117314) with DOR.
Petitioner Javier Diaz is the co-owner and co-manager of the proposed location.
Upon motion granted, DOR was excused from appearance at and participation in
the contested case hearing on the ground that it would have granted the permit but for the
unanswered question of the suitability of the proposed location.
The proposed location is in Laurens County, in or near the Town of Clinton, in a
strip shopping center located on Highway 76 (a/k/a E. Carolina Avenue) known as the
Community Cash Shopping Center.
The Community Cash Shopping Center is currently owned by Eddie Runion,
who leases space to individual tenants.
The Community Cash Shopping Center contains space for approximately ten
business tenants; however, several of the spaces are currently vacant.
On May 29, 1997, Jalisco Mexican Restaurant signed a lease with Runion for
space #9 of the shopping center, to expire June 30, 1998.
Jalisco Mexican Restaurant actually moved into space #9 and opened for
business at the proposed location in June, 1997.
In June, 1997, between the time Jalisco signed its lease and opened for business,
New Vision Tabernacle Church moved into the Community Cash Shopping Center and opened
for worship.
New Vision Tabernacle Church has a membership of approximately 30 persons,
with 50 persons regularly attending worship services.
New Vision Tabernacle Church is currently located approximately 170 feet from
the proposed location, but has plans to move its worship center to the retail space immediately
adjacent to the proposed location and use its current location as an activity center.
In addition to Jalisco's and New Vision, the shopping center contains the
following businesses: a chiropractic clinic, a finance company, a video game arcade, and a
discount furniture store. A Subway sandwich shop occupies an outparcel location of the
shopping center.
New Vision Tabernacle Church is in the process of attempting to purchase the
entire Community Cash Shopping Center from Runion.
If New Vision purchases the shopping center, it plans to renew Jalisco's lease,
but only with the condition that any liquor, beer and wine sales and consumption are prohibited.
New Vision has no objection to the operation of the restaurant at the proposed
location.
New Vision's only objection to the issuance of the beer and wine permit to
Petitioner is the proximity of the proposed location to the church.
The area immediately surrounding the proposed location is predominately
commercial and industrial in nature.
The proposed location serves authentic Mexican cuisine and caters mainly to
families.
The proposed location is one of seven Jalisco Mexican Restaurants in the
upstate, each with a beer and wine permit and/or minibottle license.
Jalisco holds a Certificate of Grade "A" Health Rating from DHEC for food
service.
The proposed location's hours of operation are: 11:00 a.m. - 2:30 p.m., and
5:00 p.m. - 10:00 p.m., Monday through Saturday.
The proposed location seats patrons at tables and booths, and it does not contain
a bar.
The protestants are mainly opposed to alcohol because of moral and religious
convictions.
No criminal arrests or convictions have taken place on the premises since it
opened.
The proposed location has not interfered with or negatively impacted church
activities at New Vision Tabernacle Church.
The sale of beer and wine at the proposed location will not adversely affect the
community.
The proposed location is suitable to sell beer and wine for on-premises
consumption.
Notice of application appeared in The Clinton Chronicle on August 27, and
September 3 and 10, 1997.
Petitioner is over twenty-one years of age, is a legal resident of the State of
South Carolina and of the United States, and has maintained his principal place of abode in
South Carolina for more than thirty days.
Petitioner has never been cited for a violation of the alcoholic beverage control
laws and has never had a permit to sell beer and wine revoked.
Petitioner is of good moral character and a suitable person to hold a beer and
wine permit.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude as a matter of law the following:
The South Carolina Administrative Law Judge Division has jurisdiction over this
subject matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and §§ 1-23-310 et seq.
(1986 & Supp. 1997).
"[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. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
S.C. Code Ann. § 61-4-520 (Supp. 1997) provides the criteria to be met by an
applicant for a beer and wine permit in South Carolina.
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. Byers v. South Carolina ABC Comm'n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
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).
While proximity of a church, residence, playground, or school to a proposed
location may be considered, among other factors, as an indication of unsuitability of a location
for a beer and wine permit, there is no minimum distance requirement. S.C. Code Ann.
§ 61-4-520(7) (Supp. 1997); Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d
653 (1991).
When the relevant testimony of those opposing the permit consists of opinions,
generalities, and conclusions unsupported by fact, the denial of a permit on the ground of
unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181
(1981). Such unsupported allegations form an insufficient basis for denial. 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).
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).
Issuance of the permit will not have an adverse impact upon the surrounding
community based upon: (1) the past problem-free operation of the business at the proposed
location and other locations; (2) the family-oriented atmosphere of the restaurant;
(3) the presence and location of other businesses in the shopping center; and (4) the lack of any
evidence that the sale of beer and wine with meals at the proposed location will interfere with
the religious activities at New Vision Tabernacle Church.
The proposed location is a proper one for issuance of an on-premises beer and
wine permit. S.C. Code Ann. § 61-4-52(6) (Supp. 1997).
Petitioner meets all of the statutory qualifications to hold a permit to sell beer and
wine. S.C. Code Ann. § 61-4-520 (Supp. 1997).
Any issues raised or presented in the proceedings or hearing of this case not
specifically addressed in this Order are deemed denied. ALJD Rule 29(B).
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the on-premises beer and wine permit sought by
Petitioner is granted.
AND IT IS SO ORDERED.
__________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
May 22, 1998
Columbia, South Carolina |
