ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division (Division) pursuant to
S.C. Code Ann. §§ 61-6-100, et seq. (Supp. 2002), § 61-6-910 (Supp. 2002), and §§ 1-23-310, et
seq. (1986 & Supp. 2002) for a contested case hearing. The Petitioner, Kalpesh M. Patel, seeks a
retail liquor license. The Department of Revenue (Department) made a Motion to be Excused
stating that but for the protests it received, the license would have been granted. This motion was
granted by my Order dated August 8, 2003. A hearing was held on this matter on September 23,
2003, at the offices of the Division in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the Petitioner and the
Protestants, I make the following Findings of Fact by a preponderance of the evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Protestants, and the Department.
2.The Petitioner, Kalpesh M. Patel, is seeking a retail liquor license for Winners
Circle located at 500B N. Main Street, Bethune, South Carolina. Bethune is a community
comprised of approximately four hundred and fifty (450) residents, many of whom are senior
citizens. This store will be directly adjacent to the Petitioner’s convenience store that is currently
permitted for the sale of beer and wine off-premises. However, the two locations are separate and
distinct with access unavailable between the two, as proscribed by law.
3.The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2002)
concerning the age, residency, and reputation of the Petitioner/licensee are properly established.
Furthermore, the Petitioner has not had a license for the sale of alcoholic liquors revoked within
the last five (5) years and notice of the application was lawfully posted both at the location and in
a newspaper of general circulation, pursuant to the requirements of S.C. Code Ann. § 61-6-180
(Supp. 2002).
4.The licensee has no criminal record and is of sufficient moral character to receive a
retail liquor license.
5.Although this location will be situated within the city limits of Bethune, there was
no evidence that the proposed location is within three hundred (300') feet or unreasonably close
to any church, school, or playground. The Protestants attested that this location will be
approximately three-tenths (3/10) and four-tenths (4/10) of a mile from two churches, and three-tenths (3/10) of a mile from a community center for senior citizens. However, this location still
meets the proximity requirements of S.C. Code Ann. § 61-6-120 (Supp. 2002).
6.No other member of the Petitioner’s household has been issued a retail liquor store
license. Additionally, the Petitioner has not been issued more than three (3) retail liquor licenses,
nor does he have an interest, financial or otherwise, in more than three (3) retail liquor stores.
7.The proposed retail liquor store is located in a predominantly residential area of
Bethune. However, the adjacent convenience store that sells beer and wine off-premises is
already situated in the area. Nevertheless, this will be the first retail liquor store in Bethune.
The Protestants contend that the sale of liquor in Bethune may have a drastic affect on
their community. In particular, they are concerned about the safety of the citizens of Bethune,
especially since this is a residential area comprised mostly of senior citizens. They believe the sale
of liquor at the Petitioner’s store may pose a threat to their safety and well-being when walking in
this residential neighborhood at night due to patrons loitering around the location. Accordingly,
they concluded that the Petitioner’s store, if it is to be licensed, would be better situated in the
more commercial area of town.
However, the Petitioner cannot sell liquor between the hours of 7:00 p.m. and 9:00 a.m.
Therefore, no transactions will be taking place at the location as it must close promptly at 7:00
p.m. Additionally, it is unlawful to permit the consumption of liquor upon the premises of a retail
liquor store. The Protestants’ evidence did not establish a substantial potential for loitering
around the location. In fact, there was no evidence that the Petitioner’s convenience store, which
sells beer and wine off-premises past 7:00 p.m., attracts loiterers. I thus conclude that this
location will not pose an increased safety threat to the area.
One Protestant who lives across the street from the location also testified that she has to
pick up beer cans in her yard. However, I find no evidence that suggests that the patrons of the
Petitioner’s retail liquor store would be prone to discard the trash from their purchases in nearby
yards or on the street. In fact, patrons littering after a purchase would most likely be an issue
with the permitted convenience store and not this license.
Another concern of the Protestants is the possible increase of traffic in this predominantly
residential area and the safety of pedestrians. As set forth above, this will be the first retail liquor
store in Bethune with the nearest one being approximately ten (10) miles away. However, the
convenience store sells gas along with beer and wine, thereby already attracting traffic flow to the
area. Additionally, the liquor store will not be attracting traffic after 7:00 p.m. Therefore, I find
that though the Protestants’ concerns are laudable, the evidence presented was speculative and
based on suppositions at this point in time.
8The Protestants who live in the vicinity of this location appear to be sincerely
concerned for their community. However, the evidence did not sufficiently establish that the
proposed location will be a source of safety or traffic problems in the area. Nor is there sufficient
evidence to find that the well-being of the surrounding vicinity would be jeopardized by the
issuance of this license, particularly in light of the convenience store and its expanded hours of
operation. Therefore, I find the proposed location to be suitable for a retail liquor store license.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (1986 & Supp. 2002) grants jurisdiction to the
Administrative Law Judge Division to hear contested cases under the Administrative Procedures
Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the Administrative Law
Judge Division the responsibilities to determine contested matters governing alcoholic beverages,
beer and wine.
2.S.C. Code Ann. §§ 61-6-110, et seq. (Supp. 2002) sets forth the general
requirements for determining eligibility for a retail liquor license.
3.S.C. Code Ann. § 61-6-140 (Supp. 2002) restricts a licensee from possessing more
than three (3) retail licenses while S.C. Code Ann. § 61-6-150 (Supp. 2002) ultimately prohibits
an individual from having an interest in more than three (3) retail liquor stores in the state of
South Carolina. The Petitioner in this case does have interest in any other location in this state.
4.S.C. Code Ann. § 61-6-1500(3)(a) (Supp. 2002)
provides that no retail dealer
may sell alcoholic liquors “between the hours of 7:00 p.m. and 9:00 a.m.”
5.Although “proper location” is not statutorily defined, broad discretion is vested in
the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. V.
Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). Furthermore, 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 operations of the proposed business and its impact upon
the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E. 2d 335
(1985). Without sufficient evidence of an adverse impact on the community, the application must
not be denied if the statutory criteria are satisfied. In other words, the fact that the Protestant
objects to the issuance of a license is not a sufficient reason by itself to deny the application. See
45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119
(1981).
6.In considering the suitability of a location, it is relevant to consider whether the
testimony in opposition to the granting of a license is based upon opinions, generalities and
conclusions, or whether the case is supported by the facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.
2d 301, (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E. 2d 801 (1973).
7.In this case, the Protestants did not establish that the public safety, health or
welfare will be endangered by the issuance of a license in this case. Therefore, the Petitioner
meets the statutory requirements for holding a retail liquor license at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the retail liquor license of Petitioner Kalpesh M. Patel for Winners Circle
be granted upon the Petitioner’s payment of the required fees and costs.
AND IT IS SO ORDERED.
Ralph King Anderson, III
Administrative Law Judge
October 21, 2003
Columbia, South Carolina |
