ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing.
Petitioner Noemi G. Gonzalez seeks an on-premises beer and wine permit for her restaurant, El
Rincon Vaquero, located at 517 12th Street in West Columbia, South Carolina. Respondent South
Carolina Department of Revenue (Department) would have granted the permit but for the protest
filed by the owners of Zesto of West Columbia, a nearby restaurant, regarding the suitability of the
proposed location. Accordingly, the Department was excused from appearing at the hearing of this
matter.
After timely notice to the parties and the protestant, a hearing of this case was held on June
23, 2004, at the Administrative Law Court in Columbia, South Carolina. Based upon the evidence
presented regarding the suitability of the proposed location and upon the applicable law, I find that
Petitioner’s application for an on-premises beer and wine permit should be granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, 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:
1.On September 24, 2003, Petitioner Noemi G. Gonzalez submitted an application to
the Department for an on-premises beer and wine permit for her restaurant known as El Rincon
Vaquero located at 517 12th Street in West Columbia, South Carolina. This application and the
Department’s file on the application are hereby incorporated into the record by reference.
2.Petitioner is a person of good moral character and has no record of any criminal
convictions. Further, Petitioner has no record of violating the laws governing the sale of alcoholic
beverages, and has not had a beer and wine permit issued to her suspended or revoked.
3.Petitioner is over twenty-one years of age, has no delinquent taxes, and is a legal
resident of the United States and of the State of South Carolina. In addition, Petitioner resides and
maintains her principal place of abode in South Carolina, and did so for at least thirty days prior to
making her application for a beer and wine permit.
4.Notice of Petitioner’s application was published in The State newspaper of Columbia,
South Carolina, once a week for three consecutive weeks, and proper notice of the application was
posted at the proposed location for fifteen days.
5.The proposed location is situated in a strip mall, along with several other businesses,
on 12th Street in the heart of a commercial area of West Columbia commonly known as “Triangle
City.” Petitioner currently operates two distinct, family-run businesses out of this location: a family
restaurant serving Mexican cuisine and a general store selling a variety of goods and items, including
packaged foods, western-wear clothing, sporting goods equipment, and health and beauty care items.
Of the location’s 7000 square feet, approximately 4000 square feet at the front of the building
comprise the general store and the remaining 3000 square feet toward the rear of the building
constitute the restaurant. Petitioner has operated her retail store at the location for two years, and
opened the restaurant at the location approximately one year ago.
6.The protestant, Nick Manos, a co-owner of Zesto of West Columbia, a nearby
restaurant, raised concerns about the proximity of Petitioner’s restaurant to his restaurant. In
particular, Mr. Manos was concerned that patrons consuming beer or wine at Petitioner’s restaurant
would become inebriated and unruly and would, upon leaving the establishment, disturb customers
of his family-oriented eatery. However, the protestant’s concerns are largely based upon his
experiences with a bar in the area whose clientele created certain problems and disturbances, and do
not directly relate to the location or operation of Petitioner’s restaurant and store. In fact, the
protestant testified that no disturbances or disruptions to his business have resulted from the
operation of Petitioner’s store and restaurant over the past two years. The protestant also raised the
issue of the proximity of Petitioner’s restaurant to two nearby religious institutions, both of which
he estimated to be less than 300 feet away from the location.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the South Carolina Administrative Law
Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq.
(1986 & Supp. 2003).
2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C.
Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see
also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.S.C. Code Ann. § 61-4-520 (Supp. 2003) establishes the criteria for the issuance of
a beer and wine permit. Included in the criteria is the requirement that the proposed location be a
proper and suitable one. See id. § 61-4-520(6)-(7).
4.Although “proper location” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness and suitability of a particular location for the requested permit.
See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5.The determination of suitability of location is not necessarily a function solely of
geography. Rather, 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); Schudel v. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6.However, without sufficient evidence of an adverse impact on the community, a
permit 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 C.J.S. Intoxicating Liquors § 119 (1981).
7.Further, 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 the
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).
8.In making a decision in this matter, this tribunal is constrained by the record before
it and the applicable statutory and case law. Here, Petitioner meets all of the statutory criteria
enacted by the South Carolina General Assembly for the issuance of a beer and wine permit, and
there has not been a sufficient evidentiary showing that the proposed location is unsuitable for
Petitioner’s restaurant or that the issuance of the permit would create problems in or have an adverse
impact upon the surrounding community. Further, the concerns raised by the protestant in opposition
to the proposed permit are primarily speculative. Unlike the bar in the area, with which the
protestant has experienced problems, Petitioner’s restaurant is a family-run business that will only
serve beer and wine as a complement to its existing food service. It would be truly speculative–and
completely without evidentiary basis–to presume that the introduction of beer and wine for sale at
Petitioner’s restaurant would lead to the same sort of problems associated with the operations of the
bar near the protestant’s business. Cf., e.g., Bergmann v. City of Melrose, 420 N.W.2d 663, 667
(Minn. 1988) (approving the city council’s decision to condition a liquor license upon the licensee’s
operation of a “family restaurant” and noting that “[a]n establishment that serves only liquor is
qualitatively different from a restaurant that serves liquor only as an adjunct to food.”). Moreover,
the protestant’s concerns regarding the proximity of certain religious institutions to Petitioner’s
restaurant are not persuasive. While the proximity of a location to a church can be a proper ground,
by itself, for the denial of a beer and wine permit, see Byers v. S.C. Alcoholic Beverage Control
Comm’n, 305 S.C. 243, 246, 407 S.E.2d 653, 655 (1991), the statutes and regulations governing the
qualifications for beer and wine permits do not provide for a minimum distance between a permitted
location and protected institutions such as churches, schools, and playgrounds, and the protestant has
not produced any evidence to suggest that the proximity of Petitioner’s restaurant to these religious
institutions, which are located amidst many other businesses in Triangle City, will have an adverse
impact upon those institutions or otherwise render Petitioner’s location unsuitable for the issuance
of a beer and wine permit.
In sum, while this tribunal is respectful of the protestant’s opposition
to the requested permit, the arguments proffered by the protestant do not constitute a sufficient basis
upon which to deny Petitioner’s application.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall continue to process Petitioner’s
application for an on-premises beer and wine permit for her restaurant located at 517 12th Street,
West Columbia, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
June 24, 2004
Columbia, South Carolina |
