ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
The
above-captioned case comes before this court pursuant to S.C. Code Ann. §
61-2-260 (Supp. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code
Ann. §§ 1-23-310 et seq. (2005 & Supp. 2007) for a contested case
hearing. Petitioner Jaliabapa, Inc., d/b/a Ed’s GT’s, seeks an off-premises
beer and wine permit for its convenience store, Ed’s GT’s, located at 3799
White Horse Road in Greenville, South Carolina. Respondent South Carolina
Department of Revenue would have granted the permit but for the protests filed
by several nearby property and business owners regarding the suitability of the
location. In particular, the protestants oppose Petitioner’s permit because they
contend that operation of the convenience store with a beer and wine permit will
have an adverse impact on the community, as it had under previous proprietors.
After timely notice to the parties and the protestants, a hearing of this
matter was held on April 11, 2008, at the South Carolina Administrative Law
Court in Columbia, South Carolina. Based upon the applicable law and the
evidence presented, I find that the Petitioner’s application for a 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
August 25, 2007, Nimesh Patel submitted an application on behalf of Petitioner Jaliabapa,
Inc., d/b/a Ed’s GT’s, to the Department for an off-premises beer and wine
permit for his convenience store, Ed’s GT’s, located at 3799 White Horse Road
in Greenville, South Carolina. The application and the Department’s file are
hereby incorporated into the record by reference.
2. Notice
of Petitioner’s application was published once a week for three consecutive
weeks in The Greenville News, a newspaper published and circulated in Greenville,
South Carolina, and proper notice of the application was posted at the proposed
location for fifteen days. The newspaper erroneously published the notice as
an on-premises beer and wine permit. However, Mr. Patel submitted the
application to be published as an off-premises permit and confirmed that
Jaliabapa is applying for an off-premises beer and wine permit.
3. Petitioner
Jaliabapa, Inc. is a South Carolina statutory close corporation incorporated on
September 18, 2007, and in good standing with the South Carolina Secretary of
State. Nimesh Patel is the manager and sole owner of Jaliabapa, Inc., d/b/a
Ed’s GT’s.
4. Mr.
Patel is over twenty-one years of age and does not have any delinquent state
taxes. Further, the South Carolina Law Enforcement Division (SLED) and Florida
Department of Law Enforcement (FDLE) conducted criminal background
investigations of Mr. Patel which did not reveal any criminal arrests or
convictions. The record does not indicate that Mr. Patel has engaged in any
acts or conduct implying the absence of good moral character.
5. Mr.
Patel has lived in the United States for eight or nine years. He has been in
Greenville for eight or nine months. He moved to South Carolina from Tampa,
Florida, to be near his wife’s family. In Tampa, he operated a convenience
store for eight years, a family business that he turned over to his brother
when he moved.
6. Mr.
Patel entered an agreement to purchase the convenience store in Greenville from
Travis Investments, Inc. on September 21, 2007. In an addendum of the same
date, Mr. Patel contracted to lease the property with an option to buy while
trying to purchase the underlying property. Mr. Patel purchased the business
from Elliott Collins, who previously owned and managed it, and purchased the
underlying property from Greg Travis, who owned the convenience store prior to
Mr. Collins in 2001. Both Elliott Collins and Greg Travis operated the
location as a convenience store and had an off-premises beer and wine permit.
Thus, the location has been permitted since at least 1997. While the location
was a parts store before that and several businesses went through over the
years, several witnesses testified that it was a Fast Fare for several years
previously. This court takes judicial notice that Fast Fares routinely have
off-premises beer and wine permits for convenience store operations.
7. Ed’s
GT’s was operating on a temporary 120-day permit, which expired on January 22,
2008. The store has experienced no problems, including the concerns raised by
the protestants below, during the period governed by the temporary permit. The
convenience store will operate from 7:00 a.m. until 9:00 p.m. except on Sunday,
when it will be open from 10:00 a.m. until 6:00 p.m. However, Ed’s GT’s will
not sell alcohol on Sundays. Mr. Patel has no plans to seek a permit for Sunday
sales. Ed’s GT’s has only one other employee besides Mr. Patel; Mr. Patel is
always there when the store is open. Ed’s GT’s will not have any video games.
He does not allow people to hang out; they come in cars, get what they need,
and leave. He has a 24-hour camera surveillance system.
8. The
convenience store is situated at the intersection of White Horse Road and Short
Street in an urban, residential community. The community is commercial in
nature with a number of older residences interspersed and another convenience
store down the street. Ed’s GT’s is located next to Nationwide Insurance,
Borden Lock & Key, J&T Realty, Carper Real Estate, and just down the
street from the Spinx store. A bar is almost directly across the street. Tabernacle
Baptist Church and School is four-tenths of a mile down the street. Welcome
Elementary School is three-tenths of a mile down the street in the other
direction. Neither the church nor the school are visible from the proposed
permitted location. Both the Spinx convenience store, which has an off-premises
beer and wine permit, and the nearby bar, which has an on-premises beer and
wine permit and liquor license, are located closer to the church than the
proposed location.
9. As
it relates to the proposed location, the protestants are life-long residents of
the community and live or run businesses in the immediate vicinity of the
convenience store. They all eloquently and passionately described the nature
of crime associated with the area surrounding this location. However, while
there are problems in the area, there is no direct evidence that Ed’s GT’s is
exacerbating or generating the criminal activity. The protestants have not
noticed any recent problems at Ed’s GT’s since Mr. Patel acquired and began
running the business.
Judy
Gilstrap, County Council Member for this district, testified that she lives in
the cul-de-sac behind Ed’s GT’s. She has protested every application at this
location, as well as nearby permitted locations. She testified that when the
location was operated as a Fast Fare, there were fights and men urinating in
back, which forced her to put an eight-foot privacy fence around her pool. However,
these events occurred over eleven years ago. There is a partial fence around
the back of Ed’s GT’s in poor condition.
Elizabeth
Carper, who owns the real estate business next door, testified that the
location is a gathering place for prostitutes and that she was jumped at
knifepoint and robbed of her bag in 2002 by someone coming from GT’s. She stated
that she owns the twenty apartments across the street and has had problems
with people breaking into and living in the apartments. She asserts that the
proposed permitted location at Ed’s GT’s generates the activity by providing
the prostitutes with a place to be, and that she can see the activity from next
door at her business. The testimony indicates that prostitution and drug
dealing are common in the community. However, the criminal activity near this
location appears unrelated to Ed’s GT’s sale of off-premises beer and wine. Mr.
Patel testified that he has not seen any prostitutes in front of the store.
Jerry
Rugg from Tabernacle Baptist Church testified that the church has a bus
ministry and that the area in front of Ed’s GT’s is a dangerous section in the
route. However, there is no evidence that Ed’s GT’s exacerbates or contributes
to any traffic problems in the area.
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. 2007), S.C. Code Ann. §
1-23-600(B) (Supp. 2007), and S.C. Code Ann. §§ 1-23-310 et seq. (2005
& Supp. 2007).
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. 2007) 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 or 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. In
determining whether a proposed location is suitable, it is proper for this court
to consider any evidence that shows adverse circumstances of location. Kearney
v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic
Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984)
(citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).
John D. Geathers
and Justin R. Werner, The Regulation of Alcoholic Beverages in South
Carolina 193 (S.C. Bar CLE Div. 2007) (citations omitted).
Id. at
194 (citations omitted).
9. The
issuance or denial of a permit or license rests within the sound discretion of
this court as the trier of fact. Terry v. Pratt, 258 S.C. 177, 187
S.E.2d 191 (1972). In considering the Petitioner’s convenience store, I am
mindful that this case raises a close question as to whether this permit should
be granted. Nonetheless, I find the proposed location suitable for the issuance
of a beer and wine permit. The location, while not grandfathered, has already
been declared suitable numerous times. Two other businesses are already
licensed in the area: the Spinx convenience store for off-premises beer and
wine and the bar across the street for on-premises beer and wine and liquor.
This court does not doubt the sincerity of and is not unsympathetic to the protestants’
concerns. However, the evidence does not indicate that there has been any
recent criminal activity that was generated by a beer and wine permit at the
proposed location. Further, this court acknowledges Mr. Patel’s utilization of
24-hour security cameras inside and outside the convenience store. Mr. Patel
has extensive individual and family experience running convenience stores in
Tampa, Florida. Mr. Patel appears to be running a reputable business that will
close at a reasonably early hour in comparison to past convenience store
operations at this location. Therefore, issuance of the permit will not
adversely impact the community.
ORDER
Based
upon the Findings of Fact and Conclusions of Law stated above, IT IS HEREBY
ORDERED that the application of Petitioner Jaliabapa, Inc., d/b/a Ed’s GT’s,
for the issuance of an off-premises beer and wine permit for the premises
located at 3799 White Horse Road in Greenville, South Carolina, is GRANTED. AND IT IS SO ORDERED.
______________________________
June 5, 2008 JOHN
D. GEATHERS
Columbia, South Carolina Administrative
Law Judge
1205 Pendleton
Street, Suite 224
Columbia, South
Carolina 29201-3731
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