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
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