SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division pursuant to the application of Vitthalbhai H. Patel, d/b/a Fast Point Food Store, hereinafter referred to as the "applicant", for an on-premise beer and wine permit for the premises located at 305 South Main Street, Abbeville, South Carolina ("location").

A hearing was held on November 18, 1994, at the Spartanburg County Courthouse, East Courtroom, Spartanburg, South Carolina. Notice of the time, place and nature of the hearing was timely given to the parties and Lee and Ginger Williamson, protestants. The permit application was protested on moral grounds. Neither protestant appeared at the hearing nor was the Respondent, South Carolina Department of Revenue and Taxation (hereafter referred to as the "Department") represented at the hearing. The applicant testified on behalf of granting the permit and he was accompanied to the hearing by Charles Powell, his landlord.

The permit is granted.

EXHIBITS

Without objection, those portions of the South Carolina Department of Revenue and Taxation's file ("Department") as set forth hereafter were made a part of the record:

1. Application for on-premises beer and wine permit with attached Source of Funds Certification

2. Affidavit of and publication notice in The Abbeville Press and Banner

3. SLED investigative report

4. Criminal history report

5. One Department of Motor Vehicles history report

6. Protest letter of Lee and Ginger Williamson

SUMMARY OF THE EVIDENCE

The applicant testified that he is 49 years old, is a resident of Spartanburg County, South Carolina, where he has lived for the past 20 years. He further testified that he has never had a license revocation but has had one license suspension due to a sale to a minor. He testified that he owns ten or more Fast Point Food Stores ("convenience stores") and has off-premise beer and wine permits for almost all of the stores.

As to the training of employees in ABC rules, he stated it consists of five days, part of which consists of playing a video tape purchased from the ABC Section of the Department and part of which is training in the correct procedure to check "ID's".

He stated that the location had an off-premise beer and wine permit for the past 20 years.

FINDINGS OF FACT

Based upon the testimony, the credibility of the witnesses and the evidence presented, by a preponderance of the evidence, I make the following Findings of Fact:

1. This Division has personal and subject matter jurisdiction.

2. The applicant is seeking an off-premise beer and wine permit for a convenience store located at 305 South Main Street, Abbeville, South Carolina.

3. The store is located in a residential area inside the city limits of Abbeville, South Carolina.

4. The applicant is over twenty-one (21) years of age and has not had an application revoked within the two (2) years preceding the date of the filing of this application.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Abbeville Press and Banner, a newspaper of general circulation in the local area where the applicant proposes to engage in business and was posted at the location for fifteen (15) days.

6. The applicant is of good moral character.

7. The location has had an off-premise beer and wine permit for the last 20 years without any violations.

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

1. S.C.Code Ann. Section 1-23-600 (Supp. 1993) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C.Code Ann. Section 61-1-55 (Supp. 1993) grants to the Administrative Law Judge Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. S.C.Code Ann. Section 61-9-320 (Supp. 1993) sets forth the requirements for the issuance of beer and wine permits. The applicant meets all the statutory requirements set forth in this provision and has made an adequate showing on each of the grounds for issuance of the permit.

4. S.C. Code Ann. §61-9-340 (Supp. 1993) states that upon a determination that an applicant meets the criteria set forth and has not misstated or concealed a fact in the application, the S.C. Department of Revenue and Taxation must issue the permit after payment of the prescribed fee.

5. "Proper location" is not statutorily defined and accordingly broad discretion is vested in the trier of fact in determining the features of the location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 181 (1981).

The determination of suitability involves a variety of considerations related to the nature and operation of the license, its impact on the community and its location. This Division must balance the interest of the applicant to sell beer and wine against the interest of local businesses, local residents and local churches to a reasonable level of peace, quiet and legal activity by others. In such a balancing, public interest must prevail.

This applicant wishes to sell beer and wine. There is no evidence that the applicant is of bad moral character or that the location has a history of problems or violations. There is no evidence to show that the granting of this permit would adversely impact the neighborhood/area. Given the history of this location holding a permit with no violations for twenty years and considering the testimony of the applicant, it is concluded that the application of the petitioner should be approved with the limitations as provided herein.

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

1. ORDERED that the application of Vitthalbhai H. Patel for an off-premise beer and wine permit for the premises located at 305 South Main Street, Abbeville, South Carolina is granted.

2. IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue the permit upon payment of the required fees and costs by the applicant.

AND IT IS SO ORDERED.

Marvin F. Kittrell

Chief Administrative Law Judge

Columbia, South Carolina

November 22, 1994

Any party aggrieved by this Decision and Order may appeal it by filing an appeal with the South Carolina Department of Revenue & Taxation, 301 Gervais Street, P.O. Box 125, Columbia, SC 29201, telephone number 734-0470. In accordance with SC Code Ann. §1-23-610(A) )Supp. 1993), the appeal must be filed within thirty (30) days after receipt of notification of this decision.