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.
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