ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court ( Court) pursuant to S.C. Code
Ann. §61-2-90 (Supp. 2003) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 2003) for
a contested case hearing. The Petitioner, Los Garcia, LLC, is the owner of a restaurant, Los
Garcia. Oscar Garcia, the principal owner, seeks an on-premise beer and wine permit for the
establishment. The Department of Revenue (Department) filed a Motion to be Excused setting
forth that but for the protests received, this permit would have been issued. This motion was
denied. A hearing on the merits of this case was held on May 6, 2004, at the offices of the Court
in Columbia, South Carolina. Notice of the time, date, place, and subject matter of the hearing
was provided to all parties at least thirty (30) days prior to the hearing date. The parties were
present as indicated above.
FINDINGS OF FACT
Having observed the testimony of the witnesses and exhibits presented at the hearing in
this matter and closely passed upon their credibility, I make the following Findings of Fact by a
preponderance of the evidence:
1. The Petitioner seeks an on-premises beer and wine permit for the establishment
known as Los Garcia, located at 6300 White Horse Rd., Greenville, South Carolina.
2.Notice of the application was lawfully posted for fifteen days at the location, and
notice of the application also ran in a newspaper of general circulation in the area. The protests
of members of White Horse Heights Baptist Church were timely received by the Department.
3. Petitioner is a legal resident of the State of South Carolina.
4. The Petitioner has no criminal record and is of sufficient moral character to
receive a beer and wine permit.
5. The location has been permitted previously for the on-premises sale of beer
and wine since 1995. This application is due solely to a change in the corporate structure from a
sole proprietorship to a limited liability corporation. There have been no violations of this permit
during that time. Petitioner runs a family oriented taqueria (restaurant/store). Mr Garcia testified
that he has approximately 50–75 people who come in the taqueria to watch the soccer games on
television and have a drink. He closes at 7:00 PM and stops serving beer at 6:30. In addition, he
does not sell alcohol on Sunday, and has a two drink limit at other times.
6. The Protestants, who are members of White Horse Heights Baptist Church, have
concerns about the possible negative influence the presence of alcohol will have on the
neighborhood. Rev. Alexander testified that the road is very busy and that there have been
numerous wrecks in the area. In addition, there have been shootings in Hallmark Square. Other
members of the church expressed similar safety concerns as well as moral objections to the sale
of alcohol. In addition, several protestants mentioned that there were enough alcohol outlets in
the area, and that they were concerned about the number of people who may be drinking and
driving.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. The South Carolina Administrative Law Court has jurisdiction in this
matter pursuant to S.C. Code Ann. §61-2-260 (Supp. 2003).
2. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.1984).
3. The applicant has complied with all the provisions of S.C. Code Ann. §61-4-520
regarding application conditions. The only remaining issue is the suitability of the location
pursuant to S.C. Code Ann. § 61-4-520(6) and (7).
4.Licenses and permits issued by the State for the sale of beer, wine, and liquor 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 license is also authorized,
for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on
the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
5.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 a Protestant
objects to the issuance of a permit is not a sufficient reason by itself to deny the application. See
45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119
(1981).
6.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 beer and wine permit
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, dealing with a Retail Liquor License). 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 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). Any
evidence adverse to the location may be considered. The proximity of a location to a church,
school or residences is a proper ground by itself upon which the location may be found to be
unsuitable and a license denied. Byers v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653
(1991). Further, the court can consider whether “there have been law enforcement problems in
the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
8.In considering the suitability of a location, it is relevant to consider whether the
testimony in opposition to the granting of a license is based on opinions, generalities and
conclusions, or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d
301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). The Protestants did not
present any specific incident reports dealing with Los Garcia.
9.Much of the Protestants’ arguments against the granting of the license sought
herein is that they do not want this type of business, i.e., a business that serves beer, in their
community. However, an aversion to the sale of alcoholic beverages is not within the statutory
grounds for denial of an application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121
(1981).
10.There are other alcohol outlets in the shopping center where the taqueria is
located. The map, drawn by a South Carolina Law Enforcement Division officer, submitted
with the DOR transmittal, and admitted as Respondent’s Exhibit #1, indicates that there are no
churches or schools in the immediate vicinity.
11.The Department of Revenue, which is the governmental body charged with
regulating and enforcing violations concerning permits and licenses involving the sale of beer
and wine, did not object to the granting of a permit in this case. I find that this location is
suitable for the on-premises sale of beer and wine.
12.Although the concerns of the Church are understandable, and the witnesses
exhibited great credibility in their opposition to the sale of beer and the possible temptations to
some of the people involved in its missions, I find that the central concerns are general moral
opposition, and not directed to any specific problems with Petitioner’s location. I find that this
location shall be permitted.ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Petitioner's application for an on-premises beer and wine permit at
Los Garcia, Inc., d/b/a Los Garcia, LLC, 6312 Edmund Hwy., Greenville, SC is GRANTED
upon payment of any required fees and costs by the Petitioner to the Department.
AND IT IS SO ORDERED.
__________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
June 3, 2004
Columbia, South Carolina |
