ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court pursuant to S.C. Code Ann. § 61-2-90 (Supp. 2004) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2004) for a contested case hearing. Petitioner Shree Satyadev, Inc., d/b/a Quick Stop (“Quick Stop”), seeks an off-premise beer and wine permit. The South Carolina Department of Revenue (“Department”) denied the permit based on the filing of a timely public protest by William C. Moore, Jr. of Trinity United Methodist Church. The Department indicated but for the timely filed public protest, the applicant has met the statutory requirements for the issuance of an off-premises beer and wine permit. A hearing was held before me on November 9, 2005, at the offices of the Administrative Law Court (ALC or Court) in Columbia, South Carolina. Reverend Michael C. Bell appeared at the hearing and was substituted as Protestant on behalf of Trinity United Methodist Church.
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 proof upon the parties and the Protestant, I make the following Findings of Fact by a preponderance of the evidence:
1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Protestant, and the Department.
2. Petitioner seeks an off-premise beer and wine permit for Quick Stop, located at 204 Pearl Street, Darlington, South Carolina.
3. The qualifications set forth in S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 2004) concerning the residency and age of Petitioner are properly established. Furthermore, Petitioner has not had a permit or license revoked within the last two (2) years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
4. Quick Stop is a convenience store located at 204 Pearl Street, Darlington, South Carolina. This area is primarily commercial. The other convenience stores in the area currently have off-premises beer and wine permits. The convenience store at the proposed location has been in operation since 1973, selling beer and wine. The landowner of the proposed location, Mr. George Harrison, testified that he and his brother operated the proposed location as a convenience store with an off-premises beer and wine permit from 1983 to 1999. He also testified that the proposed location has been vacant from 1999 until the present year. Shree Satyadev, Inc., d/b/a Quick Stop, is owned by Piyush Patel and his wife, Sneha Patel. Quick Stop has operated at the location since May, 2005. Piyush and Sneha Patel are seeking an off-premises beer and wine permit for the proposed location for Shree Satyadev, Inc. Mr. Patel testified that the proposed location closes at ten o’clock. He also testified that he keeps the store and the grounds clean and will continue to do so.
5. The issuance of the permit is contested by Reverend Michael C. Bell, pastor of Trinity United Methodist Church. The church's entrance is approximately one hundred twenty five (125) feet from the proposed location. Reverend Bell admits that the church has no problems with the Quick Stop. Reverend Bell testified that he is concerned about the availability of alcohol this close to his church, where many children are present, especially during the summer months. He is also concerned for the elderly members of the church. Overall, Reverend Bell is concerned about the negative impact the sale of alcohol will have on the church and nearby residences. He testified that Methodists have strong convictions against alcohol, and that the church members are worried about more alcohol being made available in the immediate area.
6. Reverend Bell’s arguments appear to be based on a sincere concern for his church members and their surrounding community. However, in order to deny this permit, direct evidence of an adverse impact on the community is necessary. Though the evidence offered raises “potential” concerns that this business may change the integrity of the vicinity, the evidence did not establish that the granting of an off-premise permit for this location will have an overall adverse impact on the community. There also was no evidence of an existing criminal problem that could be exacerbated by granting the permit. Therefore, I find that Petitioner’s proposed location is suitable for an off-premise beer and wine permit.
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. 2004) 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. 2004) grants the Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
2. S.C. Code Ann. §§ 61-4-520 and 61-4-540 (Supp. 2004) set forth the requirements for the issuance of a beer and wine permit.
3. Although "proper location" is not statutorily defined, 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). 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, supra; Taylor v. Lewis, supra.
“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 an off-premise beer and wine permit at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department resume processing Petitioner's application and issue an off-premise beer and wine permit to Petitioner upon payment of the proper fees and costs.
AND IT IS SO ORDERED.
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JOHN D. MCLEOD
November 15, 2005 Administrative Law Judge
Columbia, South Carolina |
