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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Vitthalbhai H. Patel, d/b/a Fast Point Food Stores vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Vitthalbhai H. Patel, d/b/a Fast Point Food Stores

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
95-ALJ-17-0004-CC

APPEARANCES:
For the Petitioners: James H. Harrison, Esquire and Michael R. Daniel, Esquire

For the Respondent/South Carolina Department of Revenue:

William Todd, Esquire
 

ORDERS:

ORDER AND DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-1-55, et seq. (Supp. 1994) and S.C. Code Ann. §§ 1-23-310 et seq. (Rev. 1986 and Supp. 1994) for a hearing pursuant to the application of Vitthalbhai H. Patel, d/b/a Fast Point Food Stores ("applicant") for an off-premise beer and wine permit (AI 91964) at 100 O'Neal Street, Gaffney, Cherokee County, South Carolina ("location"). Further, this hearing is being heard as a de novo hearing pursuant to the Order dated September 19, 1994, of the Honorable E.C. Burnett, III, Circuit Judge of the Seventh Judicial Circuit.

A hearing was held on April 21, 1995, at the Spartanburg County Courthouse, Spartanburg, South Carolina. The issues considered were: 1) the suitability of the proposed location, and 2) the nature of the proposed business activity.

The application was protested by Gregory Tate, the Gaffney Police Department, Leonard Horne, Mrs. Guy D. Parris, Thomas Blanton and the Southside Baptist Church. Gregory M. Tate; Reverend Wofford B. Caughman, Jr., pastor of Southside Baptist Church; Leonard Horne; James Fagan and Thomas Ray Blanton appeared and testified at the hearing. The Respondent/South Carolina Department of Revenue ("Department") also objected to the permit issuance.

The application request by the petitioner is granted with restrictions.



EXHIBITS

Certified copies of the Department's file, as sent to and received by the Administrative Law Judge Division, were made a part of the record except as to any memoranda to the file by ABC staff counsel summarizing evidence. Further, Petitioner placed into the record without objection as Petitioner's Exhibit #1 a zoning map sheet of the City of Gaffney.

Without objection, Respondent introduced six (6) exhibits into evidence as follows:

1. South Carolina Law Enforcement Division ("SLED") drawing of location dated 11-10-92/11-24-92;

2. Map showing a portion of the City of Gaffney including the location;

3. Twenty (20) photographs taken at the location and surrounding areas;

4. Order of Judge E.C. Burnett, III, dated September 19, 1994;

5. Petition in Common Pleas Court for Judicial Review of ABC Order dated April 7, 1993;

6. Order of ABC Commission dated April 7, 1993.

Objections to the introduction of Respondent's exhibits 7-11 on the grounds of relevancy were sustained. However, they were allowed to be proffered into the record and are as follows:

7. Order of ABC Commission dated March 28, 1990;

8. Application by Joe Michael Wix dated May 17, 1983 for a permit with supporting file documents;

9. Application by Joe Michael Wix dated April 29, 1986 for a permit with supporting file documents;

10. Application by Joe Michael Wix dated November 17, 1986 for a permit with supporting file documents;

11. Application by Janet Josephine Taylor dated October 22, 1989 for a permit with supporting file documents.

Various other letters and signed petitions in opposition to the permit issuance have been mailed to the file for inclusion as a part of the record. Petitioner offered no objection to their inclusion, only to the truth of the matter asserted therein, which objection was sustained. Accordingly, they came in with limited weight and validity.















FINDINGS OF FACT

After consideration and review of all the evidence and testimony and having judged the credibility of the witnesses, by a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. Notice of the date, time, place and nature of the hearing was timely given to all parties, including the protestants.

3. The applicant is seeking an off-premise beer and wine permit for a convenience store known as Fast Point Food Store located at 100 O'Neal Street, Gaffney, Cherokee County, South Carolina.

4. The applicant is fifty (50) years of age and is a resident of Inman, South Carolina who became a naturalized citizen of the United States in 1981. He presently owns twenty-three (23) convenience store locations in fifteen counties throughout the State of South Carolina, each permitted to sell beer and wine for off-premise consumption. Each store is called a Fast Point Food Store.

5. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Gaffney Ledger, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

6. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

7 The applicant has been a legal resident of South Carolina for over thirty days and maintained his principal place of abode in South Carolina for over thirty days.

8. The applicant is of good moral character.

9. The applicant has never had a beer and wine permit or a mini-bottle license revoked.

10. Presently, there is operational at the location a convenience store, located at the intersection of O'Neal Street and Pacolet Road, in the city limits of Gaffney, South Carolina. Directly across O'Neal Street is a florist shop and a concrete step and block company. Adjacent to the location is a small building in which there is a sign company. This convenience store is located in a mixed residential and commercial area and is zoned commercial. An Elks Club where beer, wine and mini-bottles (mixed drinks) are sold for on-premise consumption is located on O'Neal Street between the location and Southside Baptist Church, less than one half (1/2) block from the location.

11. There are no schools or playgrounds in close proximity to the location. The nearest church is Southside Baptist Church which is two blocks away. There is a metal post office box in front of the location beside O'Neal Street.

12. The hours of operation of the convenience store are 6:00 a.m. to 11:00 or 11:30 p.m. Monday through Thursday, from 6:00 a.m. to 12:00 a.m. Friday and Saturday and on Sunday from 6:00 a.m. to 10:00 p.m.

13. Applicant stipulated to no outside advertising, including advertising in the store windows, of beer or wine sales at the location if the permit is allowed.

14. Applicant has never had a complaint registered against any of his other stores as a result of beer and wine sales, each store serving as a good neighbor in its respective community.

15. Protestants' concerns center upon increased litter, loitering, increased traffic, increased danger to residents including children walking and playing in the area, increased alcohol consumption and public urination behind the store. Some of the protestants are opposed to alcohol sales anywhere although none had any concerns about the Elks Club and its sales and on-premise consumption of alcoholic beverages to its members and guests.

16. There are no juke boxes, pool tables, live music, entertainment or bands at the location.



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. 1993) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 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 a beer and wine permit which provides in part:

No permit authorizing the sale of beer or wine may be issued unless:

1. The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.

2. The retail applicant is a legal resident of the United States and has been a legal resident of this Sate for at least thirty days before the date of application and has maintained his principal place of abode in South Carolina for at least thirty days before the date of application.

3. The wholesale applicant is a legal resident of the United States and has been a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

4. The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

5. The applicant is twenty-one years of age or older.

6. The location of the proposed place of business of the applicant is in the opinion of the department a proper one. The department may consider, among other factors, as indications of unsuitable location the proximity to residences, schools, playgrounds and churches.

7. Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business.

8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.

The applicant meets all the statutory requirements set forth above and has made an adequate showing on each of the above stated grounds for issuance of the permit.

4. S.C. Code Ann § 61-3-440 (Supp. 1993) states that the Department shall not issue certain licenses to a place of business within a certain distance of a church, school or playground; however, locations for which beer and wine permits are requested are not subject to those specific restrictions.

5. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. South Carolina ABC Commission, 317 S.E. 2d 476 (S.C. App. 1984). 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 permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E. 2d 705 (S.C. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

6. Although "proper location" is not statutorily defined, broad discretion is vested in the Division in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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 the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 335 (1985). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. William G. Byers v. South Carolina ABC Commission, ____ S.C. ____, 407 S.E. 2d 653 (1991).

7. In considering suitability of location, it is relevant to consider previous history of the location and to determine whether the testimony in opposition to the granting of a permit is opinions and conclusions or supported by facts. Taylor v. Lewis, et al., 198 S.E. 2d 801 (1973). In this instance the testimony of the protestants as to increased littering, increased traffic problems, increased accidents, increased alcohol consumption and increased loitering was all conjecture. No evidence supporting any such contentions was placed in the record, only opinions and speculations. These objections could be lodged by the protestants against the renewals of the license at the Elks Club; however, almost all of the protestants testified they have no problem with people who drink there and it poses no problem. Further, the previous history of applicant's operations at his other locations with no ABC violations is credible evidence that the issuance of the permit at this location is reasonable and proper.

8. Respondent's argument at the outset of the hearing that there has been no showing of a substantial or material change with respect to the location as required under Reg. 7-96 has no merit. This argument was addressed by Judge Burnett on appeal where he found that the ABC Commission has the authority to schedule a merits hearing on an application under authority granted to it under Regulation 7-96. (See Respondent's Exhibit #4.)

9. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E. 2d 22 (1943).

10. S.C. Code Ann § 61-3-440 (Supp. 1993) states that the Department shall not issue certain licenses to a place of business within a certain distance of a church, school or playground; however, locations for which beer and wine permits are requested are not subject to those specific restrictions.

11. 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.

12. I conclude that the applicant has met his burden of proof in showing that he meets all of the statutory requirements for holding an off-premise beer and wine permit, that the proposed location and proposed activity are proper, and accordingly, the beer and wine permit should be granted with restrictions.























ORDER

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

ORDERED that the application of Vitthalbhai H. Patel, d/b/a Fast Point Food Stores for an off-premise beer and wine permit for the premises located at 100 O'Neal Street, Gaffney, Cherokee County, South Carolina is granted with the following restrictions, upon the applicant signing a written agreement to be filed with the South Carolina Department of Revenue and Taxation to adhere to the stipulations set forth below:

1. There will be no outside advertising, including signs or other means of advertising in the windows, of beer or wine sales at the location.

2. Applicant and/or his employees and agents will prevent loitering and the consumption of beer and/or wine by anyone in the parking lot and exterior areas of the proposed location. No vehicles will be allowed to remain parked in the parking areas except when its occupant/owner/driver is conducting business at the location.

3. Applicant and/or his employees and agents will provide a rest room inside the location for its customers and will put up signs and patrol the outside areas, if necessary, to ensure its customers do not urinate outside.

4. There will be no live music, bands or entertainment at the location nor any exterior/outside speakers allowed except when necessary to conduct business, such as speakers at the gas pumps. Applicant and/or his employees and agents will make every effort to ensure noise is kept to a minimum at the location to avoid any nuisance to area residents.

5. The hours of operation at the location will be 6:00 a.m. to 11:00 p.m., Monday through Saturday and from 6:00 a.m. to 10:00 p.m. on Sunday.

IT IS FURTHER ORDERED that a violation of any one of the above conditions is considered a violation against the permit and may result in a fine, suspension, or revocation.

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 Judge

Columbia, South Carolina

May 25, 1995


Brown Bldg.

 

 

 

 

 

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