South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Naiya, Inc., d/b/a GT Liquor Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Naiya, Inc., d/b/a GT Liquor Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0413-CC

APPEARANCES:
For the Petitioner: Nimesh Patel, Pro Se

For the Respondent: Milton Kimpson, Esquire

For the Protestants: Judy Gilstrap and Elizabeth Carper
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC or Court) pursuant to S.C. Code Ann. § 61-6-185 (Supp. 2007) and §§ 1-23-310 et seq. (Supp. 2007) for a contested case hearing. Petitioner is seeking a retail liquor license for its location at 3799 White Horse Road, Greenville, South Carolina. After proper notice, a hearing was held on November 6, 2008 at the offices of the ALC in Columbia, South Carolina.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion of Petitioner, the Respondent and the Protestant, I make the following Findings of Fact by a preponderance of the evidence:

1. Nimesh Patel is seeking a retail liquor license for 3799 White Horse Road, Greenville, South Carolina. Mr. Patel is the owner of Naiya, Inc., d/b/a GT Liquor Store. He has been a resident of South Carolina since for fifteen months. Mr. Patel owns and operates a convenience store next door to the proposed location as well as GT Express Mart, which is approximately one mile down the road. Both locations are currently permitted for the sale of beer and wine for off premises consumption.

2. The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2007) concerning the age, residency, and reputation of Mr. Patel were properly established. Furthermore, the licensee has not had a license for the sale of alcoholic liquors revoked within the last five years. Also, the licensee has no criminal record and is of sufficient moral character to receive a retail liquor license.

3. Mr. Patel does not currently own an interest, financial or otherwise, in more than three retail liquor stores. See S.C. Code Ann. § 61-6-140 (Supp. 2007). Notice of the application was published in a newspaper of general circulation and was lawfully posted at the location. Furthermore, there was no evidence presented that the proposed location is within five hundred feet of a school or playground.

4. There were two protests to the issuance of this license. Judy Gilstrap has lived 150 feet behind the proposed location since 1965. She testified that there have been a lot of problems at the location in the past including public intoxication, shoplifting, burglary, prostitution, and larceny, all within the past four years. She lives by herself and is concerned with the crime in the area. Elizabeth Carper also protested the issuance of this license. Ms. Carper operates as a realtor in a building she owns 2 lots away from the proposed location. Because of the criminal activity in the area, she is afraid to be at her office alone after dark. In 2002 she was robbed at knife point in her office. More recently, her front window was shot with a pellet gun and a shed at the back part of the property that transients had been breaking into to sleep was burned down.

Both Ms. Gilstrap and Ms. Carper fear that the crime that is already present in the community will be exacerbated by the issuance of a liquor license. It appears that both Ms. Gilstrap and Ms. Carper have a genuine concern for the impact this proposed business may have upon their community. However, no evidence was presented that the location would exacerbate any crime in the area. To the contrary, Ms. Carper testified that she has not seen any loitering at the proposed location since it has been open.

I therefore find that Petitioner’s proposed location is suitable for retail liquor license. However, this decision is made based upon the dearth of evidence connecting the criminal activity in the area to the proposed location or the consumption of alcohol, generally. I nonetheless recognize that given the existence of criminal activity in the area, this business has the potential to create an adverse impact to the community if Petitioner allows loitering to occur anywhere upon the its premises or if criminal activity increases as a result of Petitioner’s business. Accordingly, the determination of suitability is based on the facts as presented at the hearing. If a significant change occurs to the community as a result of Petitioner receiving this license, the proposed location would no longer be suitable.

CONCLUSIONS OF LAW

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the ALC the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2. S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2007) sets forth the general requirements for determining eligibility for a retail liquor license. S.C. Code Ann. § 61-6-140 (Supp. 2007) further restricts a licensee from possessing more than three retail licenses while S.C. Code Ann. § 61-6-150 (Supp. 2007) ultimately prohibits an individual from having an interest in more than three retail liquor stores in the state of South Carolina. Furthermore, no applicant can receive a retail liquor license if the business is located “if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality.” S.C. Code Ann. § 61-6-120 (Supp. 2007). No evidence was presented that the proposed location violates any of the above provisions.

3. The Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); S.C. Code Ann. § 61-6-910 (Supp. 2007). Although “proper location” is not statutorily defined, the determination of suitability of 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 upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates 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). It is also relevant to consider the previous history of the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801 (1973). Furthermore, 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, 189 S.E.2d 301; Taylor v. Lewis, 198 S.E.2d 801.

“A liquor license or permit may also be properly refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). Nevertheless, 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).

4 Petitioner meets the statutory requirements for holding a retail liquor license at the proposed location.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the retail liquor license of Naiya, Inc., d/b/a GT Liquor Store be granted upon Petitioner’s payment of the required fees and costs.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge

November 20, 2008

Columbia, South Carolina


~/pdf/080413.pdf
PDF

Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court