ORDERS:
FINAL ORDER AND DECISION
This matter comes before me 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 on the renewal application of
Yoko Abel. Petitioner seeks renewal of an on-premises beer and wine permit for a restaurant
located at 2338 Main Street, Columbia, South Carolina.
After timely notice to the parties and the protestant, a hearing was held on January 12,
1999, at the Administrative Law Judge Division in Columbia, South Carolina. The protestant of
record, Bruce Todd, did not move to intervene as a party.
The issues considered at the hearing were: (1) the Petitioner's eligibility to hold a beer
and wine permit; (2) the suitability of the proposed business location; and (3) the nature of the
proposed business activity. The application for the on-premises beer and wine permit is hereby
granted.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
Findings of Fact by a preponderance of the evidence:
Petitioner seeks to renew an on-premises beer and wine permit for a restaurant located
at 2338 Main Street, Columbia, South Carolina, a commercial area of the city.
Petitioner leases the building that houses the restaurant from Carol Bowers. This
location was previously licensed and operated as a restaurant under different proprietors.
Petitioner's restaurant is open daily from 11:00 a.m. to 9:00 p.m.
Petitioner is of good moral character. The State Law Enforcement Division
completed a criminal background investigation of the Petitioner. The SLED report revealed no
criminal violations, and the record before this tribunal does not indicate that Petitioner has engaged
in acts or conduct that imply the absence of good moral character.
Petitioner is at least twenty-one years of age, a U.S. citizen, and a citizen of the State
of South Carolina. Furthermore, Petitioner has maintained her principal residence in the state for
at least thirty days prior to the date of making application for an on-premises beer and wine permit.
Petitioner has not had a beer and wine permit or alcoholic beverage license revoked
within two years of the date of her application.
Mr. Todd objects to the renewal of the permit because he contends that certain day-laborers frequent Petitioner's business and then loiter, defecate, and urinate on the property of
members of the neighborhood association.
A day-laborer station is located directly across the street from Petitioner's restaurant.
The Department does not oppose Petitioner's application and would have issued the
permit but for the protest.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
S.C. Code Ann. section 61-2-260 (Supp. 1997) and Chapter 23 of Title 1 of the
1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to
hear this case.
S.C. Code Ann. section 61-4-520 (Supp. 1997) establishes the criteria for the
issuance of a beer and wine permit.
Although "proper location" is not statutorily defined, broad discretion is vested in
the Administrative Law Judge Division in determining the fitness or suitability of a particular
location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
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. See Byers v. South Carolina ABC Comm'n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
The determination of the suitability of a location is not necessarily a function of
geography alone. It involves an infinite variety of considerations related to the nature and
operations 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); Schudel v. South Carolina
ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
There was not a sufficient evidentiary showing that the present location is
unsuitable or that the issuance of an on-premises beer and wine permit would affect residents'
safety, create traffic problems, or have an adverse impact on the community.
The denial of a license or permit to an applicant on the ground of unsuitability of
location is without evidentiary support when relevant testimony of those opposing the requested
license or permit consists entirely of opinions, generalities, and conclusions not supported by
facts. 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). That is, the protestant did not present any direct evidence of a correlation
between the indecent behavior he described and the operation of Petitioner's restaurant. In fact, it
is highly likely that given the proximity of the day-laborer station to the neighborhood, such
behavior would not cease even if Petitioner's restaurant were not permitted to sell beer and wine.
Without sufficient evidence of an adverse impact on the community, the
application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a
permit or license is protested is not a sufficient reason by itself to deny the application. See 48
Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119
(1981).
Petitioner meets all of the statutory criteria enacted by the South Carolina General
Assembly for the issuance of an on-premises beer and wine permit. In making a decision in this
matter, this tribunal is constrained by the record before it and the applicable statutory and case
law. Therefore, the arguments proffered by the protestant do not constitute a sufficient basis on
which to deny Petitioner's request.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department of Revenue shall continue processing Petitioner's
application for an on-premises beer and wine permit for 2338 Main Street, Columbia, South
Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
January 26, 1999
Columbia, South Carolina |
