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:
Swstik, LLC d/b/a Oakland Grocery vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Swstik, LLC d/b/a Oakland Grocery

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0336-CC

APPEARANCES:
Kenneth E. Allen, Esquire, for the Petitioner

Lynn M. Baker, Esquire, for the Respondent

Protestant: Pastor Wilbur White
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

Swstik, LLC, d/b/a Oakland Grocery (Oakland Grocery) filed an application for an off-premises beer and wine permit with the South Carolina Department of Revenue (DOR), for 1113-H Oakland Avenue, Florence, South Carolina. A protest was filed pursuant to S.C. Code Ann. § 61-4-525 by Pastor Wilbur White of Ambassadors for Christ seeking to prevent DOR from granting the application. I held a contested case hearing on this matter on November 8, 2005 at the Court in Columbia, South Carolina. Notice of the time, date, location, and nature of the hearing was timely sent, and the parties and protestant were present as noted. Emma J. Sellers, Myrtle L. Verner and Timothy C. Waters had filed valid protests, but were unable to attend the hearing. As such, their protests are deemed abandoned. Oakland Grocery asserts it meets the statutory requirements for an off premises beer and wine permit. DOR states it would have granted the permit but for the filing of the protest asserting the location is improper. The sole issue in dispute is the suitability of the location. Based on the evidence and relevant factors before me, I find that the off-premises beer and wine permit should be granted.

FINDINGS OF FACT

Having observed testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, 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 parties as well as all Protestants in a timely manner.

2. The Petitioner seeks an off-premises beer and wine permit for the business

establishment known as Swstik, LLC, d/b/a Oakland Grocery, located at 1113-H Oakland Avenue, Florence, South Carolina. Oakland Grocery is a full-service grocery store. This location had been licensed previously several years ago.

3. This location is in a strip shopping center located between Oakland Avenue and Sopkin Avenue. The area is primarily commercial establishments between these roads, and residential areas across the streets. The store would be open from 7 AM to 9 PM Monday through Saturday and from 9 AM to 7 PM on Sunday. The community has been supportive of the grocery store, and has asked for packaged beer to be sold.

4. Notice of the application was lawfully posted for fifteen days at the location, and

notice of the application also ran in a newspaper of general circulation in the area. Pastor Wilbur White of Ambassadors for Christ timely filed his protest dated May 17, 2005 asserting his opposition to the sale of alcoholic beverages and his concerns about traffic and safety. The church is located next door to the proposed location, in the same shopping center.

6. The Department has indicated that the Petitioner met all statutory requirements relative to the application for an off-premises beer and wine permit, pursuant to S.C. Code Ann. § 61-4-520 (Supp. 2004) and 23 S.C. Ann. Regs. 7-200 (2004), and that it would have issued the permit but for the protest. At the hearing, however, testimony revealed that Neil Patel, the husband of the owner Shital Patel, was also involved in a management position at the store. Mr. Patel was not listed on the Petitioner’s application as being involved in the day-to-day management. The Petitioner moved to amend its application to include Mr. Patel. The Department consented, subject to the satisfactory completion of a SLED and DOR revenue check on Mr. Patel.

CONCLUSIONS OF LAW

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

1. S.C. Code Ann. § 1-23-600 (Supp. 2004) grants jurisdiction to the South Carolina Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2004) grants to the South Carolina Administrative Law Court the powers, duties and responsibilities to hear contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § 61-4-520 (Supp. 2004) sets forth the requirements for issuance of beer and wine permits.

4. The determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operation of a 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).

5. Any evidence adverse to a location may be considered. In evaluating the issuance of a beer and wine permit, the proximity of the location to a church, school or residence is a proper ground by itself on which the location may be found to be unsuitable and the permit denied. Byers v. South Carolina ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge can consider whether there have been any law enforcement problems in the general area. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the judge can consider the proximity or the absence of other licensed locations in the immediate vicinity and the existence of students and small children in the area.

6. Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not 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).

7. 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, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the Protestant testified that he was opposed to the sale of alcohol, although he appreciated the nearby presence of the grocery store. He further noted that the church had been in this location for three years. An after school program, while separate from the church, operates nearby. The presence of alcohol around the school children concerns Pastor White. He did not, however, submit any specific facts to indicate that this location is unsuitable. An aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of an application. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (1981).

8. Standards for judging the suitability of a proposed location for the sale of beer, wine or liquor are not determined by a local community’s religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful enterprise in South Carolina, regulated by the State. See S.C. Code Ann. §61-4-10 et seq. (Supp. 2004) and 23 S.C. Ann. Regs. 7-200 et seq. (2004).

9. The Department of Revenue, which is the governmental body charged with regulating and enforcing violations concerning permits and licenses involving the sale of beer and wine, did not object to the granting of a permit in this case. I find that this location is suitable for the off‑premises sale of beer and wine.

10. Although the concerns of the Church are understandable, and the witness exhibited great credibility in his concerns for the safety of his community and the possible temptations to some of the people affiliated with the church, I find that the central concern is a general moral opposition, not directed to any specific problems with Petitioner’s location. In addition, his concerns about law enforcement problems, while admirable, are primarily conjectural.

11. I conclude that the Petitioner’s burden of proof has been met by virtue of meeting

all of the statutory requirements for granting the off-premises beer and wine permit at the proposed location, subject to the SLED and DOR review for Mr. Patel. I further conclude that the proposed location is proper for the permit.

ORDER

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

ORDERED that the South Carolina Department of Revenue shall grant the off-premises beer and wine permit for Swstik, LLC, d/b/a Oakland Grocery, located at 1113-H Oakland Avenue, Florence, South Carolina, once the background check on Mr. Patel has been satisfactorily completed.

AND IT IS SO ORDERED.

_______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

 

November 30, 2005

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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