ORDERS:
FINAL ORDER AND DECISION
This matter comes before this tribunal pursuant to S.C. Code Ann. §§1-23-310, et seq. (Rev.
1986 & Supp. 1997) for a hearing on Petitioner's application for an on-premises beer and wine
permit for a location at Rt. 1, South of Highway 301 in Turbeville, South Carolina to be known as
"Joe's".
After timely notice to the parties and protestants, a hearing was held at the Georgetown
County Courthouse on August 18, 1998. The Petitioner, Jose Garcia, failed to appear but was
represented by John M. Prosser, Jr., a member of the Florence County Bar.
EXHIBITS
Those certified copies of documents forwarded to the Administrative Law Judge Division
from the S.C. Department of Revenue (Department) were made a part of the record. However, no
probative weight is given to any affidavits contained in the Department's file from individuals who
were not present to testify at the hearing.
FINDINGS OF FACT
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 and the protestants.
3. Petitioner filed an application with the Department on or about January 5, 1998, seeking
an on-premises beer and wine permit for a location in Turbeville, South Carolina.
4. The application was protested by members of the community and the Sheriff of Clarendon
County based on illegal activity which has occurred and continues to occur at this location.
CONCLUSIONS OF LAW AND ANALYSIS
A. Jurisdiction
1. Pursuant to S.C. Code Ann. §61-2-260 (Supp. 1997) and S. C. Code Ann. §1-23-320
(Supp. 1996), the Administrative Law Judge Division has jurisdiction to hear this matter.
B. Suitability of location
2. S.C. Code Ann. §61-4-520 establishes the criteria for the issuance of a beer and wine
permit. Included among the factors for consideration is the suitability of the location.
3. In determining whether a proposed location is suitable, it is proper for this tribunal to
consider any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984). See also Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
C. Burden of Proof
4. In civil cases generally, the burden of proof rests upon the party who asserts the
affirmative of an issue. 29 Am. Jur. 2d Evidence §127 (1994); Alex Sanders, at al., South Carolina
Trial Handbook §9:3 Party With Burden, Civil Cases (1994). Petitioner is the party asserting the
affirmative in this case; therefore, the Petitioner must prove by a preponderance of the evidence that
he is qualified to hold an on-premises beer and wine permit and that his place of business is a
suitable location for such permit.
5. 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 ed. 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, supra, §9:5 Quantum of
Evidence in Civil Cases (1994),(citing Frazier v. Frazier, 228 S.C. 149, 89 S.E., 2d 225 (1955)).
Petitioner failed to appear at the hearing to submit evidence as to the suitability of the
proposed location to be licensed and of his qualifications to hold an on-premises beer and wine
permit. He, therefore, has failed to prove to the Court that he is entitled to the permit for which he
has applied.
Based on Petitioner's failure to appear, the Respondent moved for dismissal of the
case under ALJD Rule 23. This Rule provides:
The administrative law judge may dismiss a contested case adverse
to the defaulting party. A default occurs when a party fails to respond
or otherwise prosecute or defend, fails to appear at a hearing without
the proper consent of the judge, or fails to comply with any
interlocutory order of the administrative law judge. Any non-defaulting party may move for an order dismissing the case or
terminating it adversely to the defaulting party.
By virtue of Petitioner's request for a contested case, he has an obligation to defend his
position. "There is a limit beyond which the court should not allow a litigant to consume the time
of the court...." Georganne Apparel, Inc. v. Todd, 303 S.C. 87,92, 399 S.E.2d 16, 19 (Ct. App. 1990).
Petitioner did not request a continuance or otherwise contact this tribunal regarding the hearing.
Respondent's motion was granted, and pursuant to Rule 23, the petition was dismissed and the
application was denied.
C. Judicial Notice
6. Pursuant to Rule 201 SCRE, this tribunal is authorized to take judicial notice of
adjudicative facts. A Court can take judicial notice of its own records, files, and proceedings for all
proper purposes including facts established in its records. Freeman v. McBee, 280 S.C. 490, 313
S.E. 2d 325 (Ct. App.1984).
I, therefore, take judicial notice of the following: The record before the Court contains
police reports (filed by the Clarendon County Sheriff's Department) of a civil disturbance with
gunshots fired and a stabbing at the proposed location (formerly known as Jake's place) on June 7,
1997; a murder occurring at the location (formerly known as Jake's Place) on July 5, 1997; and a
larceny incident report on July 14, 1997. Although these incidents occurred when the location was
under the management and control of the prior permittee, they are factors which I or any other trier
of fact would have to take into consideration in making a decision as to whether it is appropriate to
issue or deny the requested permit. The record also reflects a police report (filed by the Clarendon
County Sheriff's Department) of disorderly conduct at the location on May 15, 1998 and a police
report of vandalism and destruction of property occurring at the location on May 24, 1998, at a time
when the Petitioner was in possession of the premises. These are additional factors which the Court
would have considered in making a decision if the issue had been presented on the merits.
The record before the Court also reflects two Violation Reports written by Agents of the
South Carolina Law Enforcement Division Alcohol Enforcement Unit against the Petitioner, Jose
Garcia, one for permitting the purchase of beer by a person under the age of twenty-one on or about
February 20, 1998 and one for permitting the possession of beer by a person under the age of twenty-one on February 20, 1998. At the time of these violations, the Petitioner was operating the location
known as Joe's on a temporary beer and wine permit issued by the Department of Revenue. These
violations would also have been considered had this matter been heard on the merits.
I also note that ten protestants were in attendance at this hearing to oppose the granting of
this permit. Their testimony would, likewise, have been considered if this matter had been heard on
the merits.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Jose S. Garcia for an on-premises beer and wine permit
for a location at Rt. 1, Turbeville, South Carolina is hereby dismissed and the Respondent, South
Carolina Department of Revenue is ordered to deny the application.
IT IS FURTHER ORDERED that if the Petitioner herein files a new application, all
matters in the file which would have been considered by this tribunal had the matter been heard on
the merits will be made a part of the record to be submitted to the Administrative Law Judge
Division by the Department of Revenue as part of the new application.
AND IT IS SO ORDERED.
__________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
November 4, 1998 |
