South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Vitthalbhai H. Patel, Fast Point Food Store, Inc. vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Vitthalbhai H. Patel, Fast Point Food Store, Inc.

Respondents:
South Carolina Department of Revenue

Intervenor:
Alfred F. Harrison
 
DOCKET NUMBER:
97-ALJ-17-0293-CC

APPEARANCES:
James H. Harrison, Esq., for Petitioner

Alfred F. Harrison, pro se, for Intervenor

Arlene D. Hand, Esq., for Respondent, Excused from Appearance
 

ORDERS:

ORDER

I. Statement of the Case



The Petitioner, Vitthalbhai H. Patel, d/b/a Fast Point Food Store, Inc. (Patel) of 131 Hickory Hill Drive, Inman, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an off-premises beer and wine permit for 6710 Dorchester Road, Charleston, South Carolina. Alfred F. Harrison 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.



II. Issue



Does Patel meet the statutory 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 protestants assert 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 March 2, 1997, 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 # 113659.

3. The proposed business location and the place where the beer and wine permit will be utilized is 6710 Dorchester Road, Charleston, South Carolina.

4. The business will operate as a convenience store.

5. A protest to the application was filed by Alfred F. Harrison.

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

7. The hearing was held on September 3, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.



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 good moral character.



c. Legal Resident and Principal Place of Abode



12. Patel has resided in South Carolina since 1976.

13. Patel currently resides at 131 Hickory Hill Drive, Inman, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

14. 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



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



e. Age



16. Patel's date of birth is February 5, 1945.

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



f. Proposed Location



18. The proposed location formerly operated as a Scotchman Store selling beer and wine under an off-premises beer and wine permit.

19. During the prior operation of the proposed location from 1987 until April of 1997, the former owners were not charged with any violations of the beer and wine laws or of any criminal law.

20. The proposed location has operated with a temporary beer and wine permit since April of 1997, and the current applicant has not been charged with any violations of the beer and wine laws or of any criminal law.

21. The proposed location will continue the same business as the former Scotchman Store by operating as a convenience store selling gasoline, snacks, food, and other convenience items.

22. The proposed location will operate from 6:00 a.m until 1:00 a.m Monday through Friday, 7:00 a.m. until midnight on Saturday, and 7:00 a.m. until 11:00 p.m. on Sunday.

23. The location is at least as suitable now for the sale of beer and wine under an off-premises permit as it has been in the prior ten years.

24. Dorchester Road is a four-lane highway with a paved center median.

25. An office park is across the street from the proposed location.

26. Farther down Dorchester Road, an apartment complex identified as Donaree Apartments and a shopping mall are also across from the proposed location.

27. The immediate area to the right of the location provides a golfers' driving range and a mini-warehouse storage.

28. The area is primarily commercial with multi-family housing across the street.

29. Within a quarter mile of the proposed location, at least two convenience stores hold beer and wine permits, two bars hold beer and wine permits as well as minibottle licenses, and two restaurants hold on-premises beer and wine permits.

30. Dorchester Road provides adequate traffic ingress and egress for the proposed location.

31. From the front door of the proposed location to the driveway entrance of Lambs Elementary is 716 feet.

32. One property line of Lambs Elementary is 75 to 100 feet from the proposed location with the property line covered by trees and other vegetation.

33. The trees and vegetation separate the playground facilities of the school from the proposed location with the proposed location not being visible from the school due to the trees and other vegetation.

34. The proposed location is not within an improper proximity to residences or schools and playgrounds in the area.

35. Police incident reports have originated from the proposed location with such reports ranging from civil disturbances to automobile accidents.

36. The proposed location is not a problem location for law enforcement.



g. Notice



37. Notice of the Patel application was published in The North Charleston News, a newspaper published and distributed in Charleston County, with notice published on February 26, March 5, and March 12, 1997.

38. 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.

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

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



3. Discussion



a. General Criteria



The only matter disputed is whether the proposed location is proper. Under S.C. Code Ann. §61-4-520(6) (Supp. 1996), no beer and wine permit may be granted unless the proposed location is a proper location. In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). 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).



b. Basis For Decision



The decision of whether a proposed location is a proper location is a highly factual matter and is based upon the weighing and balancing of numerous considerations. 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.



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, the location has been permitted for approximately ten years. While some testimony demonstrated a number of police incidents in the area from January 1, 1997 to September 1, 1997, most of those reports involved automobile accidents, and the testimony did not establish any of the details of these or other incidents. Overall, the police testimony concluded that the location is not considered a problem location for law enforcement. Further, no evidence demonstrates any violations of beer or wine or alcohol laws at the location. Thus, the location demonstrates the sale of beer and wine under an off-premises permit is at least as suitable now as it has been in the prior ten years. Accordingly, no persuasive grounds exist to deny the permit due to criminal activity.



The location's proximity to residences and schools can be a proper ground to deny a permit. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Re'hg denied Sept. 4, 1991; Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Here, however, the school is located a significant distance away and is physically separated from the proposed location by trees and vegetation dense enough to prevent a line of sight to the proposed location from the school. Likewise, the residences in the multi-family housing are separated from the proposed location by either a four-lane highway or are a significant distance away.



Additionally, it is relevant whether there are already similar existing businesses in the area. Taylor v. Lewis, supra. Here, the area will not be significantly altered by allowing this convenience store to hold an off-premises beer and wine permit since beer, wine, and minibottles are already being sold in the area under several on-premises and off-premises permits.



Finally, the character of the entire area as commercial is a consideration. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, while several apartment complexes are in the area, the overall characteristic of the area is that of a commercial location. The proposed location is on a major traffic route with a small shopping mall not far from the proposed location. The immediate area to the right of the location provides a golfers' driving range and a mini-warehouse storage area. Overall, the area presents a predominately commercial area.

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. § 61-4-520(1) (Supp. 1996).

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. § 61-4-520(2) (Supp. 1996).

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. § 61-4-520(4) (Supp. 1996).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1996).

5. In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

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. 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).

8. The location's proximity to residences and schools can be a proper ground to deny a permit. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Re'hg denied Sept. 4, 1991 Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

9. The existence of other similar businesses in the area is a factor in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

10. The character of an area as commercial is a consideration. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

11. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 1996).

12. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(8) and (9) (Supp. 1996).

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



IV. ORDER



DOR is ordered to grant to Patel an off-premises beer and wine permit at 6710 Dorchester Road, Charleston, South Carolina.



AND IT IS SO ORDERED.



__________________________________

RAY N. STEVENS

Administrative Law Judge



This 30th day of September, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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