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SC Administrative Law Court Decisions

Palmetto Reserve, Inc. vs. SCDOR, et al

South Carolina Department of Revenue

Palmetto Reserve, Inc.

South Carolina Department of Revenue and Nitin Shah

For the Petitioner: James H. Harrison, Esquire

For Respondent Nitin Shah: Marlene T. Sipes, Esquire




This matter comes before the Administrative Law Judge Division (ALJD or Division) pursuant to S.C. Code Ann. § 61-2-90 (Supp. 1998) and S. C. Code Ann. § 1-23-310 et seq. (1986 and Supp. 1998) for a contested case hearing. Petitioner Palmetto Reserve, Inc., seeks a retail liquor license for its business. The South Carolina Department of Revenue (Department) made a Motion to be Excused stating that but for the protest of this application, the Department would have issued the license. The Department's Motion was granted by my Order dated April 12, 1999. Afterward, Protestant Nitin Shah made a Motion to Intervene which was also granted on April 12, 1999. (Hereinafter Protestant will be referred to as Respondent Shah or Shah.) A hearing was held before me on April 29, 1999, at the Administrative Law Judge Division.


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 Respondent Shah, I make the following Findings of Fact by a preponderance of evidence:

General Findings

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Respondent Shah, and South Carolina Department of Revenue.

2. The Petitioner seeks a retail liquor license for Palmetto Reserve at 2116 Clemson Road, Columbia, South Carolina.

3. The qualifications set forth in S. C. Code Ann. §61-6-110 (Supp. 1998) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last five years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The proposed location is not within 500 feet or unreasonably close to any church, school or playground.

5. No other member of Petitioner's household has been issued a retail liquor store license.

6. The Petitioner has not been issued more than three retail dealer licenses, nor does she have an interest, financial or otherwise, in more than three retail liquor stores.

7. Respondent Shah objects to the issuance of a permit to the Petitioner for the following reasons:

a) the northeast community is "more than adequately served" by the existing number of retail liquor stores in the area; and

b) the Petitioner is not of sufficient character to receive a retail liquor.

8. Palmetto Reserve is located in a commercial area of northeast Richland County. There are several locations that sell beer and wine in the immediate area of the proposed location. Directly beside the proposed location is Bobby's which holds an on-premise beer and wine permit. Additionally, in the same Shopping Center of the proposed location is a Food Lion grocery store which holds an off-premise beer and wine permit. Across Hardscrabble Road is Magnolia shopping center in which Piggly Wiggly grocery store and Respondent Shah's store are located. Piggly Wiggly holds an off-premise beer and wine permit and Respondent Shah holds a retail liquor license.

Number of Existing Retail Stores

9. Respondent Shah, who owns a competing retail liquor store in the area, testified that there is an adequate number of retail liquor stores in the area to service the population. He contends that if the Petitioner's store is opened it would economically harm his retail liquor store in the adjacent shopping center. However, the Respondent Shah presented no empirical evidence to support his proposition. I find that the evidence did not sufficiently establish that there are too many retail stores to safeguard the public health, safety, and welfare of the citizens who live in the area.

Reputation of the Applicant

10. Respondent Shah also argued that the Petitioner was not of sufficient character to receive a retail liquor license. Shah's contentions were based upon his belief that the Petitioner priced some of her items either below cost or slightly above cost at her previous retail liquor store. Furthermore, Shah also testified that since the Petitioner wrote a bad check at her previous business, she is on a cash basis with the liquor whole sellers. The Respondent argues that the fact that whole sellers will deal with the Petitioner on only a cash basis is reflective that she does not have sufficient moral character to receive a retail liquor license. However, the Respondent Shah did not establish that even if his contentions were true that the Petitioner has bad moral character. I find that the Petitioner has no criminal record and is of sufficient reputation to receive a retail liquor license.


Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 1998) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1998) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. §§ 61-6-110, et seq. (Supp. 1998) sets forth the requirements for

determining eligibility for a retail liquor license.

4. S.C. Code Ann. § 61-6-120 (Supp. 1998) provides that:

The department shall not grant or issue any license provided for in this article or Article 7 of this chapter, if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality.

5. Shah contends that the retail liquor license should be denied because there is an over saturation of retail liquor outlets in the area of the proposed location. S.C. Code Ann.§ 61-6-170 provides that "[t]he department may, in its discretion, limit the further issuance of retail dealer licenses in a political subdivision if it determines that the citizens who desire to purchase alcoholic liquors therein are more than adequately served because of (1) the number of existing retail stores, (2) the location of the stores within the subdivision, or (3) other reasons." The primary rule of statutory construction is to ascertain and effectuate the intent of the legislature. Plyler v. Evatt, 313 S.C. 405, 438 S.E.2d 244 (1993). The intent of the General Assembly in enacting Section 61-6-170 was not to ensure economic viability of businesses already licensed in the area, but to safeguard the public health, safety, and welfare of the citizens who live in the area. See Alok Pandey, Pandey, Inc., d/b/a Party Pop Shop/One Stop Liquor v. South Carolina Department of Revenue and Taxation, and Vestal McCarty, Docket No. 95-ALJ-17-0527-CC. There is no evidence that establishes that the public safety, health or welfare is endangered by the issuance of a license in this case because of a plethora of retail liquor stores. Therefore, the proposed location is not unsuitable pursuant to Section 61-6-170.

6. S.C. Code Ann. § 61-6-1820 (Supp. 1998) provides that in order to obtain and maintain a retail liquor license, the holder must be of good moral character. In South Carolina, there is no single criterion by which to determine whether or not one possesses good moral character. S.C. Att'y Gen. Op. No. 2709, 1969 S.C. Att'y Gen. Ann. Rep. 159. Generally, good moral character means that one should possess all elements essential to make up that character, such as honesty and veracity. Id. See also Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 (Fla. Dist. Ct. App. 1977); Broers v. Montana Dept. of Revenue, 773 P.2d 320 (Mont. 1989).

7. 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).

8. The determination of suitability of 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).

9. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that a Respondent Shah objects to the issuance of a permit 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).

10 In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by 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).

11. The Petitioner meets the statutory requirements for holding a retail liquor license at the proposed location.


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

ORDERED that the Department of Revenue issue a retail liquor license to Palmetto Reserve, Inc., upon the Petitioner's payment of the required fees and costs.



Ralph King Anderson, III

Administrative Law Judge

May 4, 1999

Columbia, South Carolina

Brown Bldg.






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