SC Administrative Law Court Decisions

The Petitioner, Ashvinrhai Patel (Patel) of Loris, South Carolina filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an off-premises beer and wine permit for 1810 Jordanville Road, Galivants Ferry, South Carolina. Rev. Earl Nobles filed a protest seeking to prevent DOR from granting the permit. 23 S.C. Code Regs. 7-90 (Supp. 1996) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1996). The relevant factors require granting the permit with restrictions.

Does Patel meet the requirements for a beer and wine permit?

III. Analysis

1. Positions of Parties:

Patel asserts he meets the statutory requirements. DOR states that since a protest prevents the granting of a permit until a hearing is held, DOR awaits the outcome of that hearing. The protestant asserts only one basis for denying the permit: the proposed location is not proper.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about October 21, 1996, Patel filed an application with the Department of Revenue for an off-premises beer and wine permit.

2. The application is identified by DOR as AI# 111442.

3. The proposed business location and the place where the beer and wine permit will be utilized is 1810 Jordanville Road, Galivants Ferry, South Carolina.

4. The business operates as a convenience store selling soft drinks, can goods, chips, candy and other assorted convenience items.

5. A protest to the application was filed by Rev. Nobles.

6. Except for the unresolved suitability of location issue, DOR would have issued the permit.

7. The hearing was held March 31, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

b. Moral Character

8. The State Law Enforcement Division (SLED) investigated the applicant's criminal background.

9. The SLED report revealed no criminal violations.

10. The applicant's actions and conduct do not imply the absence of good moral character.

11. Patel is of sufficient moral character for a beer and wine permit.

c. Legal Resident and Principal Place of Abode

12. Patel has resided in South Carolina since October of 1986.

13. Patel holds a valid South Carolina driver's license.

14. Patel currently resides at 4806 Azalea Dr., Loris, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

15. Patel is a legal resident of the United States and South Carolina, has held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

d. Prior Revocation Of Beer or Wine Permit

16. Patel has never had a beer and wine permit revoked.

e. Age

17. The date of birth of Patel is December 9, 1948.

18. Patel is over twenty-one years of age.

f. Proposed Location

19. Prior owners of the existing location operated with an off-premises beer and wine permit for approximately 7 and a half years.

20. Except for one incident, the evidence does not demonstrate any problems associated with the location during prior operations.

21. Patel purchased the business from Judith Davis (Davis).

22. Patel will continue the same business as the prior owner.

23. On October 17, 1996, while the permit was held by Davis, an employee at the business sold beer to a party under twenty-one (21) resulting in a charge of violating the ABC laws and the payment of a $400 fine for the violation.

24. Davis surrendered her permit on October 21, 1996.

25. Patel obtained a temporary permit in December of 1996.

26. Loitering at the proposed location has occurred during the operation by prior owners.

27. Rehobeth Baptist Church is a tenth of a mile from the proposed location.

28. Prior operations of the business have not disrupted or interfered with church activities.

29. The proposed location is not within a prohibited proximity to a church.

30. No school is in proximity to the proposed location.

31. The location is adequately served by traffic routes of Jordanville Road and Dog Bluff Road.

32. The proposed location is not within a prohibited proximity to residences.

g. Notice

33. Notice of the Patel application was published in the Field & Herald Neighbors, a newspaper published and distributed in Horry County, with notice published on October 24, 31, and November 7, 1996.

34. Notice of the Patel application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Galivants Ferry.

35. Patel gave notice to the public by displaying a sign for fifteen days at the proposed business.

36. Patel gave notice of the application by the required advertising by newspaper and display of signs.

3. Discussion

a. General Criteria

The applicant satisfies the requirements of having good moral character, being a legal resident of South Carolina for 30 days, having a principal place of abode in South Carolina for 30 days prior to filing the application, not having had a beer or wine permit revoked within two years of the date of the current application, being at least twenty-one years of age, and providing proper notice of the application by way of newspaper and the display of signs. The disputed matter is whether the proposed location is proper.

b. Basis For Decision

Under S.C. Code Ann. § 61-9-320 (Supp. 1995), no beer and wine permit may be granted unless the proposed location is a proper location. Geography alone is not the sole suitability consideration, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. I conclude the permit must be granted but with restrictions.

Here, several factors weigh in favor of granting the permit. First, traffic issues do not prohibit the permit. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). The traffic patterns will not adversely impact the area since Jordanville Road and Dog Bluff Road provide adequate routes for safety concerns. Second, the location is not within a forbidden proximity to a church. Certainly, proximity of a location to a church is a factor in examining a permit request. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Here, however, the evidence establishes that the prior years of operation have not presented a problem for church activities. The current applicant, who will conduct essentially the same business as the prior operators, will also not likely pose a problem to church functions. Third, an important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, prior owners at the proposed location operated with off-premises beer and wine permits for several years. Except for one incident, the evidence does not demonstrate any problems associated with the location during those prior operations. Since the applicant will continue essentially the same business as the prior operators, such a factor strongly supports granting the permit.

The evidence confirms, however, that loitering has occurred in the past and the fear is that such may continue under Patel's operation. Loitering is a legitimate concern. While I do not find the potential for loitering a sufficient basis by itself to deny the permit, I do find the potential for loitering to be a valid basis for imposing restrictions. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Further, permits are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976). Accordingly, Patel shall post no-loitering signs on the exterior and interior of the proposed location, shall take all reasonable measures to enforce the no-loitering restriction, and shall install an automatic light on the exterior of the building with the light activated from sun-down until sun-up.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995).

2. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995).

3. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-9-320(4) (Supp. 1995).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995).

5. No beer and wine permit may be granted unless the proposed location is a proper location. S.C. Code Ann. § 61-9-320 (Supp. 1995).

6. Geography alone is not the sole suitability consideration, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

7. Traffic issues can be considered. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8. Proximity of a location to a church may be a factor in examining a permit request. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

9. An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

10. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943).

11. Permits are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976).

12. Considering all relevant factors, the proposed location, with restrictions, provides a proper location for a beer and wine permit S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

13. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-9-320(7) and (8) (Supp. 1995).

14. The applicant meets the requirements for the issuance of a beer and wine permit.

DOR is ordered to grant to Patel an off-premises beer and wine permit at 1810 Jordanville Road, Galivants Ferry, South Carolina upon Patel signing an agreement with DOR to adhere to the following restrictions:

1. Patel shall post no-loitering signs on the exterior and interior of the proposed location.

2. Patel shall take all reasonable measures to enforce the no-loitering restriction.

3. Patel shall install an automatic light on the exterior of the building with the light activated from sun-down until sun-up.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 14th day of April, 1997

Columbia, South Carolina