ORDERS:
AMENDED FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division ("Division") pursuant to
S.C. Code Ann. § 61-2-260 (Supp. 1996) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp.
1997) for a hearing pursuant to the application of Hitesh S. Patel, d/b/a Bryant's Grocer,
("Applicant" or "Petitioner"), seeking an on-premises beer and wine permit (AI 122139) for the
premises located at Rt. 1, Box 516, New Zion Road a/k/a Morrison Extension, Lake City,
Williamsburg County, South Carolina ("location").
A hearing was held on December 8, 1998, at the offices of the Division, 1205 Pendleton
Street, Columbia, South Carolina by Marvin F. Kittrell, Chief Judge of the Division. The issue
considered was the suitability of the proposed location.
The application was protested by Mrs. Deeann P. Floyd who lives in the community where
the proposed business is located. Appearing with Mrs. Floyd was the Rev. Billy Lee, pastor of the
Floyd's Chapel Pentecostal Holiness Church which is located in the community. Both testified in
opposition to the issuance of the beer and wine permit for on-premise consumption.
The Department of Revenue ("Department") asserted in its Motion to Be Excused dated
September 16, 1998 that there was no controversy between the Petitioner and the Department, and
that the sole issue was the question of the suitability of the location based upon the filed protest. The
Department's Motion to Be Excused from appearing at the hearing was granted by Order dated
October 29, 1998.
The application request is granted.
EXHIBITS
Certified copies of documents forwarded to the Division by the Department are made a part
of the record.
FINDINGS OF FACT
Having observed the witnesses at the hearing and closely passed upon their credibility,
taking into consideration the burden of persuasion by the parties and the protestant, I make the
following Findings of Fact by a preponderance of evidence:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place, and subject matter of the hearing was timely given to
the parties and the protestant.
3. Petitioner is seeking an on-premises beer and wine permit for a convenience store and
grill located on New Zion Road a/k/a Morrison Extension, Rt. # 1, Box 516, Lake City,
Williamsburg County, South Carolina.
4. Petitioner will be operating the business at the location under the corporate name of
H & R Corporation, which is a corporation licensed in the State of South Carolina.
5. The location fronts on a rural highway (S-45-33) at its intersection with secondary
road S-45-471. It sits almost directly on the county line separating Clarendon County from
Williamsburg County. There is a field behind the location, woods across highway S-45-33, and a
closed auto repair garage, woods and several rural residences across the highway.
6. The proposed location is in a rural area.
7. The proposed location was purchased by the Petitioner on June 10, 1998 from L. J.
Bryant for the sum of Ninety Thousand and no/100 ($90,000.00) Dollars, which purchase price
included the land, improvements and the personal property. Petitioner invested all his savings in the
purchase of the location.
8. The Department previously issued an on-premise beer and wine permit for the
location to Mr. L. J. Bryant; it has been so permitted for at least six years. The Department has
issued to Petitioner a temporary permit for on-premise consumption of beer and wine. No
complaints nor violations have been made to or from the Department since the issuance of the permit
to Petitioner.
9. The location is primarily a small rural grocery store; however, Petitioner has tables
inside for seating approximately sixteen (16) people. The location also has a complete kitchen with
a grill where Petitioner cooks full meals for service to his customers, including hot dogs,
hamburgers, steaks, fried chicken and vegetables. There is no bar in the store, nor does Petitioner
have any plans to utilize the store as a bar.
10. Petitioner is assisted in the operation of the grocery store by his wife.
11. The hours of operation of the store are from 6:00 a.m. to 11:00 p.m. Monday through
Saturday and from 9:00 a.m to 10:00 p.m. on Sunday, which are the same hours which Mr. Bryant
utilized when he owned the store.
12. There is a restroom inside the store which is available for use by customers.
13. The location has a pool table and some video game machines in a separate room.
14. Petitioner and his wife have operated a grocery store in North Carolina where beer
and wine was sold. There were no violations cited for this location while it was operated under their
direction and control.
15. Although there was testimony concerning heavy traffic in front of the store, the local
sheriff's office, which was apprised of the permit application, has made no objection to the permit's
issuance.
16. There are mercury vapor lights and other lights on the exterior of the location which
are operable and utilized by Petitioner.
17. Petitioner has a retail sales tax license and a federal employee number.
18. Many of the patrons of the store request beer or wine; when sold, it is poured into a
glass or cup and is not served to them in bottle form.
19. There are other locations in the general area which are permitted for the sale of beer
and wine.
20 The concern of the protestant, Mrs. Deeann P. Floyd, who lives some 0.3 to 0.4 miles
from the location, is that in the past several individuals would loiter outside at the location and
would urinate outside. Further, she testified that some of the individuals appeared to be drunk and
occasionally would get into fights. She has no objection to an off-premise beer and wine permit
being issued by the Department to the Petitioner.
21. The concern of the Rev. Billy Lee, pastor of the Floyd's Chapel Pentecostal Holiness
Church, which is located some 0.8 miles from the location, is based upon moral and spiritual
objections. Further, he feels that the issuance of the permit could be a danger to the schoolchildren
who exit the buses in front of the location, particularly if individuals drink on the premises and then
loiter around outside in a drunken condition. He has no objection to an off-premise beer and wine
permit being issued by the Department to the Petitioner.
22. Petitioner was born on December 30, 1958 and is thirty-nine (39) years of age. He
lives at Lake City, Williamsburg County, South Carolina. He established his residency in South
Carolina in April 1997.
23. Applicant has never had a beer and wine permit revoked.
24. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The News, a newspaper of general circulation in the local area where the Petitioner
proposes to engage in this business.
25. Notice of the application has been provided to the general public by the South
Carolina Law Enforcement Division through the posting of a sign for a minimum of fifteen (15)
days at the site of the proposed location.
26. Petitioner is of good moral character. He has no record of any criminal violations. 27. The qualifications set forth in S.C. Code Ann. § 61-4-520 (Supp. 1996) concerning
the residency, age and moral character of the Petitioner are properly established as are the publication
and notice requirements.
28. The Greenville City Police Department did not protest the application request.
29. There are no public schools, playgrounds or churches in close proximity to the
proposed location.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. Pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and Chapter 23 of Title 1 of the
1976 Code, as amended, the South Carolina Administrative Law Judge Division is empowered to
hear this case and issue a Final Decision.
2. S.C. Code Ann. § 61-4-520 (Supp. 1997) which sets forth the requirements for the
issuance of a beer and wine permit, provides as follows:
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, has been a legal
resident of this State for at least thirty days before the date of application, and
has maintained his principal place of abode in the State 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 this State for at least thirty days before the date of
application and has maintained his principal place of abode in the 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.
7) The department may consider, among other factors, as indications
of unsuitable location, the proximity to residences, schools,
playgrounds and churches. This item does not apply to locations
licensed before April 21, 1986.
8) 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. The department must determine which newspapers meet
the requirements of this section based on available circulation figures.
However, if a newspaper is published in the county and historically has been
the newspaper where the advertisements are published, the advertisements
published in that newspaper meet the requirements of this section. An
applicant for a beer or wine permit and an alcoholic liquor license may use
the same advertisement for both if the advertisement is approved by the
department.
9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:
(a) state the type of permit sought;
(b) state where an interested person may protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the division.
3. The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South
Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
4. The preponderance of the evidence "is evidence which is of the greater weight or
more convincing than the evidence which is offered in opposition to it....". Black's Law Dictionary
1182 (6th Edition 1990). "The preponderance of the evidence means such evidence as, when
considered and compared with that opposed to it, has more convincing force and produces in the
mind the belief that what is sought to be proved is more likely true than not true." Sanders, Neese,
and Nichols, South Carolina Trial Handbook, section 9:5 Quantum of Evidence in Civil Cases
(1994), citing Frazier v. Frazier, 228 S. C. 149, 89 S.E.2d 225 (1955).
5. Evidence has probative value "if it tends to prove an issue." Black's Law Dictionary
1203 (6th ed. 1990).
6. A trial judge, who observes the witness, is in the better position to judge his demeanor
and veracity and evaluate his testimony. See Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App.
1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984); McAlister v. Patterson,
278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973).
7. Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact (judge) in determining the fitness or suitability of a particular location. Fast Stops, Inc.
v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
8. 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.
9. 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.2d 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. Byers v. South
Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge can consider
whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282
S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the judge can consider the proximity or the absence
of other licensed locations in the immediate vicinity and the existence of students and small children
in the area.
10. In considering suitability of location, it is relevant to consider previous history of the
location and to determine whether the testimony in opposition to a permit consists of opinions and
conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
11. In this case, the protestant and Rev. Billy Lee have addressed several concerns which
must be considered by this tribunal. A thorough consideration of those concerns requires that the
permit as requested for the on-premises sale and consumption of beer and wine should be granted.
Although there are several residences in the general area, they are located some distance from the
location and their occupants will not be affected by the issuance of this permit. Although the two
protestants are residents in the general area, their objections to the issuance of the permit are
primarily limited to concerns about patrons of the location loitering after having been drinking at the
location and urinating outside the location. The various restrictions placed on the permit should
ensure that these potential problems should not occur. The objection as to moral and religious
reasons is not a sufficient basis to deny a permit.
12 I find and conclude that the objections raised by the protestants are not sufficient for
this tribunal to find that this location is unsuitable. The evidence presented by the protestants does
not rise to the level to show a detriment to the community. There is not sufficient evidence shown
that the grant of the permit would create any hazardous or congested traffic conditions and/or safety
concerns to the citizens in the general area. Further, there has been no evidence of any law
enforcement problems at the location in the past, or that the issuance of the permit would create such
problems in the future. In fact, the evidence shows that law enforcement has no objection to the
permit issuance. Although this tribunal is particularly concerned with protecting the safety and well-being of citizens in the community in which they live, it must weigh all the facts and evidence and
allow the issuance of permits and licenses where there is no credible evidence for their denial.
13. Permits and licenses issued by this state for the sale of liquor, beer and wine are not
property rights. Rather, they are privileges granted in the exercise of the state's police power to be
used and enjoyed only so long as the holder complies with the restrictions and conditions governing
them. The Administrative Law Judge, as the trier of fact authorized to grant the issuance of a permit,
may likewise place restrictions or conditions on the permit or license. See Feldman v. S.C. Tax
Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
14. S.C. Code Ann. § 61-4-540 (Supp. 1996) states that upon a determination that an
applicant meets the requisite qualifications and conditions, is a fit person and the proposed place of
business is a proper one, absent sufficient evidence of an adverse impact on the community, the
department must issue the permit after payment of the fees as required by law. The fact that a permit
or license is protested is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d
Intoxicating Liquors § 162 (Supp. 1994); 48 C. J. S. Intoxicating Liquors § 119 (1981).
15. Standards for judging the suitability of a proposed location for the sale of beer, wine
or liquor are not determined by a local community's religious convictions. Criteria must be uniform,
objective, constant and consistent throughout the State. The sale of beer, wine or liquor is a lawful
enterprise in South Carolina, regulated by the State.
16. I conclude that the Petitioner has met his burden of proof in showing that he meets
all of the statutory requirements for holding an on-premises beer and wine permit at the location.
I further conclude that the proposed location is a proper one for granting the permit subject to the
Petitioner signing a written agreement with the Department to adhere to the restrictions set forth in
this Order. These restrictions shall be a part of the permit.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, It is hereby:
ORDERED that the application of Hitesh S. Patel, H & R Corporation, d/b/a Bryant's
Grocery, for an on-premises beer and wine permit for the grocery store located at New Zion Road,
highway S-45-33, Rt. # 1, Box 516, Lake City, Williamsburg County, South Carolina, is granted,
and it is further
ORDERED that the Department shall issue the permit to the Petitioner upon his compliance
with the requirements of S.C. Code Ann. § 61-2-160 (Supp. 1997), upon Petitioner's payment of the
required fees and costs and upon Petitioner signing a written agreement with the Department to
adhere to the restrictions set forth as follows:
(1) Petitioner shall maintain proper lighting around the location to discourage criminal activity and to ensure the safety of its customers, patrons and invitees.
(2) Petitioner shall not sell or serve beer and/or wine to its customers except during its hours of operations as stated in this order. Beer and wine shall only be served inside the location in glasses or cups.
(3) Petitioner shall ensure that no loitering occurs on the premises outside the physical structure at the location.
(4) Petitioner shall immediately locate signs on the exterior of the building and elsewhere on the property informing the public that no loitering nor public urination will be allowed.
(4) Petitioner shall ensure that no urination occurs on the premises outside the
physical structure at the location.
(5) At a minimum Petitioner shall ensure one bathroom is always in working order inside the location and is always available for use by its customers/patrons. IT IS FURTHER ORDERED that a violation of any one of the above conditions and
restrictions will be considered a violation against the permit and may result in a fine, suspension, or
revocation of the permit.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
December 17, 1998 |
