ORDERS:
ORDER
I. STATEMENT OF THE CASE
Tierra Enterprises, LLC, d/b/a Kabayan Lounge & Restaurant (Tierra) filed with the South Carolina Department of Revenue
(DOR) an application for an on-premises beer and wine permit and a sale and consumption license for 405 Redbank Road,
Goose Creek, South Carolina. Principals of Tierra are Mercedes C. Salvatierra and Roberto A. Salviatierra. Protests were
filed by Christine Holbert and Helen Conner, both seeking to prevent DOR from granting this application.
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-2-90 and 61-2-260
(Supp. 1998) and S.C. Code Ann. § 1-23-310 et seq. (1986 and Supp. 1998) for a contested case hearing. The Respondent
made a Motion to be Excused, which was granted by my Order dated August 23, 1999. A hearing was held on August 24,
1999, at the Administrative Law Judge Division. The Protestants did not move to intervene.
In this matter, not all of the requirements for obtaining a beer and wine permit or a minibottle license are disputed. The
Applicant conducts a business bona fide engaged primarily and substantially in the preparation and serving of meals of
furnishing of lodging. 61-6-1820 (1) (Supp. 1998). No dispute exists that the applicants have good moral character. S.C.
Code Ann §61-4-520(1) & 61-6-1820(2) (Supp. 1998). Further, the applicants are legal residents of the United States, have
been legal residents of South Carolina for 30 days prior to filing the application, and occupy a principal place of abode in
South Carolina. S.C. Code Ann. §61-4-520(2) and §61-6-1820(7) (Supp. 1998). In addition, the Applicants have not had a
beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. §61-4-520(4)
(Supp.1998). The Applicants are at least twenty-one years old. S.C. Code Ann.§ §61-4-520(5) & 61-6-1820 (6) (Supp.
1998). Additionally, the Applicants gave proper notice of the application by way of newspaper publication and the display of
signs. S.C. Code Ann.§§61-4-520(8)and (9) & 61-6-1820 (4) & (5) (Supp.1998). The Applicants have not been convicted
of a felony within ten years of the date of application. §61-6-1820(8). Finally, the Applicants do not owe the state or federal
government delinquent taxes, penalties, or interest. S.C. Code Ann. § 61-2-160 (Supp.1998). Thus, the granting or denying
of the permit is based upon the disputed matter of whether Tierra meets the requirements of the location being proper.
Since the beer and wine permit is challenged, 23 S.C. Code Regs. 7-90 (Supp.1998) requires a hearing. As to minibottles, a
hearing is required by 23 S.C. Code Regs. 7-3 (Supp.1998). The Administrative Law Judge Division (ALJD) has
jurisdiction to conduct the required hearings under the contested case provisions of S. C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1998). The evidence and relevant factors require granting the on-premises beer and wine permit and the
minibottle license.
II. ISSUE
Does Tierra meet the requirements for an on-premises beer and wine permit and a minibottle license in light of an allegation
that the location is improper?
III. ANALYSIS
1. Positions of Parties
Tierra asserts that it meets the statutory requirements. DOR states it would have granted the permit but for the filing of
protests asserting the location is improper. The Protestants maintain that the permit should be denied, alleging that the
location is not suitable.
2. Findings of Fact
Based on the preponderance of the evidence, I find the following facts:
A. General Facts of Location
On or about March 11, 1999, Tierra filed an application with the DOR for an on-premises beer and wine permit and a
minibottle license. The applicant and the location were investigated by SLED and the investigating agent drew a map
generally depicting the immediate area of the proposed location. Following the notices posted by SLED and by the
Applicant, Christine Holbert and Helen Conner challenged the application. A Hearing was held before me on Tuesday,
August 24, 1999, with notice of the date, time, place, and subject matter of the hearing given to the Applicant, DOR, and the
Protestants.
The proposed business is located at 405 Redbank Road, Goose Creek, South Carolina. The business is a restaurant which
will be open from 7:00 A.M. until 2:00 A.M. Monday through Friday, and from 7:00 A.M. until 12:00 midnight on Saturday.
It will be closed on Sunday. The restaurant will provide seating for 45 and live music will not be provided. Adequate
parking places are provided.
B. Specific Facts of Location
1. Statutory Proximity Factors
The nearest school, Howe Hall Elementary, is four-tenths of a mile from the proposed location. The nearest church, St.
Mary's Catholic Church, is located 504 feet from the proposed location; Calvary Church of the Nazarene is 1216 feet and
Trinity Missionary Baptist Church is three-tenths of a mile from the proposed location. The location is not within an
improper proximity to schools or churches in the area.
2. Other Factors
The Redbank Road area is characterized as a highly commercial area, with numerous bars and restaurants in close proximity.
This location, which was formerly known as Deng's Restaurant, has had a beer and wine permit and a minibottle license
since 1996. There was no evidence of citations issued related to beer and wine or minibottle violations. Accordingly, the
addition of an on-premises beer and wine permit and a minibottle license at this location will not adversely affect the
character of the area.
3. Conclusions of law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
A. Law of Location Applied to Location Facts
1. Location Factors: General
Under S.C. Code Ann. § 61-4-520 (Supp. 1998), no beer and wine permit may be granted unless the location of the place of
business is a proper location. Additionally, in granting a minibottle license, consideration may be given to the suitability of
the location. Schudel v. S.C. ABC Comm'n, 276 S.C.138, 276 S.E.2d 308 (1981). In general, consideration may be given
to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Geography alone is not the sole consideration of suitability, but
rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
2. Location Factors: Proximity
The proximity of the location to residences, churches, schools, and playgrounds is a proper consideration. William Byers v.
S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555
(1992). Indeed, the sole factor of an improper proximity to any one of the institutions of residences, churches, schools, or
playgrounds is a proper basis for denying a beer and wine permit. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407
S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
Here, the front door is located 205 feet from the nearest residence, four-tenths of a mile from the nearest school, and 504
feet from the nearest church. Further, the proposed location is closed on Sundays. In addition, during other hours of the
week no live music is provided at the location. From all the facts presented, no likelihood exists for noise or disturbance
creating a problem for the church. Additionally, parking at the proposed location does not interfere with church or school
activities. Considering all of the factors, the proposed location is not within an improper proximity to churches, residences,
schools or playgrounds in the area.
3. Location Factors: Other
A proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon law
enforcement. Evidence that granting the permit will place a strain upon police to adequately protect the community must be
weighed. Moore v. S.C. ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992). An additional relevant consideration is
whether the law enforcement officers have had significant problems with public intoxication at or near the location. Roche v.
S.C. ABC Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Pertinent facts are whether police have been summoned to the
scene on prior occasions when licensed to another party. Shudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308
(1981). Is the location near other locations that have been either a constant source of law enforcement problems or are
locations where young people congregate and loiter? Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct.
App. 1984).
Although Protestants offered into evidence a compilation of crimes which occurred in the Redbank Road policing area, that
Exhibit consisted entirely of hearsay evidence, and I have not given it any weight. No representative from local law
enforcement petitioned to intervene as a party or as a Protestant. There is no evidence that law enforcement officers have
been summoned to the location.
Consideration can be given to the extent to which the highway traffic presents a location that is heavily traveled or creates a
traffic danger. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, Redbank Road
provides a proper traffic route for the proposed location and does not present a traffic problem.
A valid consideration is whether the surrounding area is substantially commercial and whether other similar businesses that
sell beer and wine or alcohol already exist within the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald
Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, other business establishments are in the
area. The overall area is characterized as extensively commercial in nature.
A relevant factor is whether in the recent past beer and wine and minibottles have been sold at the same location by former
owners and whether the evidence shows that the location is now any less suitable than during the former time period. Taylor
v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, a former owner operated the proposed location with a beer and wine
permit and a minibottle license until March 1, 1999. During that prior operation, no citations were issued relating to beer
and wine or minibottle violations.
B. Ultimate Conclusion as to Location
I have considered all of the factors relevant to the proposed location and given due weight to the evidence presented at the
hearing. The proposed location is not in improper proximity to residences, schools, churches, or playgrounds. Further,
other location factors do not demonstrate the location is improper for a beer and wine permit or a minibottle license. S.C.
Code Ann. § 61-4-520 (Supp. 1998) and 61-6-1820. Accordingly, Tierra Enterprises' application seeks an on-premises beer
and wine permit and a minibottle license for a location that is proper.
IV. ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
The South Carolina Department of Revenue is ordered to grant Tierra Enterprises, LLC's Application for an on-premises
beer and wine permit and its Application for a minibottle license at 405 Redbank Road, Goose Creek, South Carolina.
AND IT IS SO ORDERED.
____________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
September 2, 1999
Columbia, South Carolina |
