SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1993) upon an application for a retail liquor license for a location at 600 S. Main Street, Darlington, South Carolina, by Bipin S. Patel, d/b/a Solanki Enterprises, Inc., filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on January 5, 1995. The issues considered were: (1) the applicant's eligibility to hold a license; (2) the suitability of the proposed business location; and (3) the nature of the proposed business activity. The license application is hereby denied.

At the commencement of the formal hearing, Thelma Dawson, a protestant to the application, moved to intervene as a party in this matter on the grounds that because her residence and dental office are across the street from the proposed location, she would likely be adversely affected by the final Order. Respondent DOR not appearing, an appeal from an adverse Order would be unlikely. Movant was not represented by counsel. Petitioner opposed the motion on the grounds of the untimeliness of the motion and prejudice to him in not being able to make use of discovery prior to the hearing. Petitioner did have notice of movant's protest and intention of testifying as an adverse witness; however, Petitioner could not have anticipated that he would be subject to cross-examination by protestants. Petitioner's rights would not be prejudiced by a conditional intervention by Movant nor would the proceedings be prolonged by intervention. Accordingly, over Petitioner's objection, Movant's motion to intervene was granted with the restriction that Movant could not conduct cross-examination pursuant to Rule 20.

By a preponderance of the evidence, I find:

(1) Applicant seeks a retail liquor license for a location at 600 S. Main Street, Darlington, South Carolina, having filed an application with DOR, AI #99956.

(2) Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, and DOR.

(3) The proposed location is currently licensed to sell beer and wine for off-premises consumption and is being operated by Applicant as a convenience store known as the Food Markette. Applicant intends to renovate and partition the building to accommodate an additional but separate store as a retail liquor store at the same location.

(4) The proposed location is located at the corner of S. Main and Jessamine Streets on the southern side of the City of Darlington in a mixed residential and commercial neighborhood.

(5) Chad Solanki, the operator of the Food Markette and corporate shareholder of Solanki Enterprises, Inc., testified in support of the application.

(6) Testifying in opposition to the application were: Dr. Thelma Pugh Dawson, Intervenor-Protestant; Rev. James Kelly, Pastor of Friendship Baptist Church; Deidre Odom; James Jackson; and Iona Pugh.

(7) Residents of the area are in fear for the safety of themselves and their children from persons under the influence of alcohol and/or other drugs.

(8) There are currently two other licensed retail liquor stores on Main Street in Darlington, neither of which are located in residential areas.

(9) No school, church, or playground is within 300' of the proposed location, though several schools and churches are in the neighborhood.

(10) Under a proposed Darlington County School Board plan, a magnate high school is located in close proximity to the proposed location.

(11) Applicant has owned and operated the convenience store, licensed to sell beer and wine, at the proposed location for approximately four years.

(12) The proposed location, previously licensed under former operators, has a history of being a meeting place for drug dealers and users, vagrants, and loiterers, with nearby residents complaining of noise, unruly crowds, and illegal activities.

(13) During the past four years, under Applicant's ownership, problems at the proposed location have lessened, but not disappeared as a result of Applicant's actions and management policies.

(14) The proposed location and adjacent property are gathering points and heavy traffic areas.

(15) Patrons of the convenience store have been observed urinating outside.

(16) The proposed location has experienced problems with young people congregating and loitering.

(17) The applicant is over twenty-one years of age, is a resident of the State of South Carolina, and has maintained his principal residence in South Carolina for more than one year.

(18) The applicant has not had a license or permit revoked in the last two years.

(19) The applicant, who intends to be the manager of the business, is of suitable character and temperament to hold a retail liquor license.

(20) Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.

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

(1) The South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1993) and Chapter 23 of Title I of the 1976 Code, as amended.

(2) DOR is authorized to issue retail liquor licenses under the provisions of S.C. Code Ann. § 61-3-410(3) (Supp. 1993).

(3) A permit or license must not be issued if an applicant does not meet the standards of S.C. Code Ann. § 61-3-730 (Supp. 1993).

(4) Applicant meets the statutory requirements to be a holder of a retail liquor license.

(5) S.C. Code Ann. § 61-3-440 (Supp. 1993) dictates that a retail liquor store located within a municipality must be a minimum of three hundred (300') feet from any church, school, or playground.

(6) 23 S.C. Code Ann. Regs. 7-11 (1976) provides the method for measuring the distances referred to in § 61-3-440.

(7) No schools, churches, or playgrounds are within the prescribed proximity to render the proposed location statutorily unsuitable.

(8) As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a license or permit using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d 705 (S.C. App. 1984).

(9) Despite Applicant's commendable efforts, a retail liquor store at the proposed location would likely exacerbate existing problems.

(10) The proposed location is unsuitable for the sale of liquor because of the tendency of the location to attract drug users and dealers, vagrants, and other unsavory persons.

(11) The proposed location is unsuitable for the sale of liquor because of the residential nature of the community and the presence of children in the area.

(12) The proposed location is unsuitable for the sale of liquor, in light of existing problems of loitering, public urination, and drug activity in the immediate area.

IT IS THEREFORE ORDERED that DOR deny the license applied for.

______________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

January ____, 1995

Columbia, South Carolina