South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Maria S. Marin, d/b/a Arturos vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Maria S. Marin, d/b/a Arturos

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
98-ALJ-17-0381-CC

APPEARANCES:
For the Petitioner: Maria S. Marin, Pro Se

For the Respondent/South Carolina Department of Revenue: Arlene D. Hand, Esquire (Excused from appearance at hearing)

For the Protestant: Kay Barrett, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 1997), for a hearing pursuant to the application of Maria S. Marin, d/b/a Arturos ("Petitioner") for an on-premise beer and wine permit (AI-119567) and an on-premise sale and consumption ("mini-bottle") license (AI-119568) for the premises located at 104 Frontage Road, City of Clemson, Pickens County, South Carolina ("location").

A hearing was held on August 21, 1998, at the Pickens County Courthouse, Pickens, South Carolina. The issue considered was the suitability of the proposed location.

The application was protested by Johnson W. Link, Chief of Police of Clemson Police Department. The South Carolina Department of Revenue ("Department"), as set forth in the agency transmittal form and Motion to Be Excused, advised the Division it would have issued the permit and license to the Petitioner but for the protest. The Department's Motion to Be Excused from appearing a the hearing was granted.

The permit requested by the Petitioner is approved.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented a 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 the 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 and the protestants.

3. The Petitioner is seeking an on-premise beer and wine permit (AI-119567) and a sale and consumption license (AI-119568) for a restaurant known as "Arturos", located at 104 Frontage Road, Pickens County, Clemson, South Carolina.

4. This location previously held an on-premise beer and wine permit and a sale and consumption license, issued to Paul E. Stofan, d/b/a Tacqueria Tigritos. The location is in an area zoned commercial within the city limits of Clemson, and it has been licensed on several occasions in the past. The restaurant is located at the corner of two four-lane highways. There are trees on both sides and behind the business.

5. The location is a Mexican restaurant with seating for 95 people. The hours of the restaurant are 11:00 a.m. until 2:30 p.m. for lunch, Monday through Saturday; 5:00 p.m. until 10:00 p.m. for dinner, Monday through Wednesday; and 5:00 p.m. until 11:30 p.m. for dinner, Thursday through Saturday.

6. This location is not within three hundred (300) feet of any church, school or playground.

7. The Petitioner was born on November 28, 1968 and is thirty years of age. She is a resident and citizen of the state of South Carolina and has been for more than thirty days prior to the filing of the renewal of the application. She is of good moral character.

8. Petitioner has never had a beer and wine permit or a business sale and consumption license revoked.

9. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Messenger, a newspaper of general circulation in the area of the proposed location, and notice was posted at the proposed location for fifteen (15) days.

10. The protestant stated that he would have no objection to the granting of the permit and license if the conditions imposed on the previous permit holder at the location by Administrative Law Judge Ralph King Anderson, III, on October 12, 1995, are incorporated into this permit and license. The Petitioner stipulated that she would abide by those conditions if granted a permit and license. Those conditions are as follows:

a. There shall be no outside live music after 10:00 p.m.

b. There shall be no live music inside after 11:00 p.m.

c. The Petitioner or her employees shall patrol and monitor the parking area from 10:00 p.m. until closing to insure that patrons do not loiter or create a public disturbance in the parking lot.

d. The Petitioner shall provide and maintain at least fifty (50) parking spaces.

e. The Petitioner shall not allow excessive noise to emanate from the proposed location. For the purposes of this restriction, any conviction for the violation of the county noise ordinance shall be considered prima facie evidence of a violation of this provision.

11. Except for the protest filed, the Department would have issued the beer and wine permit and sale and consumption license.

CONCLUSIONS OF LAW

Based upon the above findings of fact, I conclude, as a matter of law, the following:

1. S.C. Code Ann. § 1-23-600 (Supp. 1997) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-4-520 (Supp. 1997), which sets forth the requirements for the issuance of a beer and wine permit, provides in part:

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.

* * *

4) The applicant, within two years before the date of application, has not had revoked a beer or 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. . . .

9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. . . .

3. S.C. Code Ann. § 61-6-1820 (Supp. 1997), which sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license, provides in pertinent part:

The Department may issue a license under subarticle 1 of this article upon finding:

1) 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. . . .

3) As to business establishments or locations established after November 7, 1962, § 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. . . .

5) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. . . .

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.

4. Petitioner has met the statutory qualifications concerning her residency, age and moral character, as well as the publication and notice requirements.

5. S.C. Code Ann. § 61-6-20(2), (Supp. 1997), which define a bona fide business engaged primarily and substantially in the preparation and serving of meals, provides as follows:

As used in the ABC Act, unless the context clearly requires otherwise:

(2) "Bona fide engaged primarily and substantially in the preparation and serving of meals" means a business which has been issued a Class A restaurant license prior to issuance of a license under Article 5 of this chapter, and in addition provides facilities for seating not less than forty persons simultaneously at tables for the service of meals.

The Petitioner has met the requirements of this statute.

5. S.C. Code Ann. § 61-6-120 (Supp. 1997) prohibits the issuance of a liquor license for on-premises consumption if the place of business (location) is within three hundred feet (300') of any church, school or playground situated within a municipality. No churches, schools or playgrounds are located within the prescribed proximity to render the proposed location unsuitable.

6. 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 the applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). 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.

7. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of 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).

8. S.C. Code Ann. § 61-4-540 (Supp. 1997) 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, the department must issue the permit after payment of the fee as required by law.

9. Permits and licenses issued by the State for the sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to

revoke it, that tribunal is likewise authorized to 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).

10. A violation of any regulation or section of the Alcoholic Beverage Control Act is punishable by revocation or suspension of the license pursuant to S.C. Code Ann. § 61-6-1830 (Supp. 1997).

11. I conclude that the Petitioner has met her burden of proof in showing that she meets all of the statutory requirements for holding a retail beer and wine permit and a sale and consumption license at the proposed location. I further conclude that the proposed location is a proper one for granting the permit and license with the stipulations set forth above in Finding of Fact #10.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the application of Maria S. Marin, d/b/a Arturos, for an on-premise beer and wine permit and a sale and consumption license at 104 Frontage Road, Clemson, South Carolina, be granted upon the Petitioner signing a written agreement with the South Carolina Department of Revenue to adhere to the stipulations set forth above in Finding of Fact #10.

IT IS FURTHER ORDERED that a violation of any of those stipulations is considered a violation against the permit and license and may result in a fine, suspension or revocation.

IT IS FURTHER ORDERED that the Department of Revenue issue the permit and license upon Petitioner's compliance with the requirements of S.C. Code Ann. § 61-2-160 (Supp. 1997) and upon Petitioner's payment of the required fees and costs.

AND IT IS SO ORDERED.



_______________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

September 28, 1998


Brown Bldg.

 

 

 

 

 

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