ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the Administrative Law Judge Division ("Division") pursuant to S.C. Code
Ann. § 61-2-260 (Supp. 2000) and Chapter 23 of Title 1 of the Code of Laws of South Carolina
1976 Annotated, as amended. Amin and Zoha Enterprise, Inc., d/b/a USA Grocers Conoco
("Petitioner"), through its president Mirza Umer Aftab, filed an application for an off-premises
beer and wine permit for the premises located at 2391 Reidville Road, Spartanburg, SC
("location"). (1) Reverend William Bethea ("Protestant") protested the application.
The South Carolina Department of Revenue ("Department") filed a Motion to be Excused,
stating that but for the protest of this application, the Department would have issued the permit. I
granted the Department's motion on April 4, 2001.
On May 29, 2001, a contested case hearing was held at the Division, at 1205 Pendleton Street,
Suite 224, Columbia, South Carolina. Appearing at the hearing and offering testimony were
Naeem Haq and Kenneth Waldrop on behalf of Petitioner and Reverend William Bethea as the
sole Protestant. Based on the testimony at the hearing and the certified copies of documents
forwarded by the Department and entered into the record, I find that the application should be
granted.
FINDINGS OF FACT
Having carefully considered the credibility of the testimony and accuracy of the evidence in the
record and taking into consideration the burden of persuasion by the parties, I make the following
findings of fact by a preponderance of the evidence:
1. Notice of the date, time, place, and subject matter of the hearing was given to the parties as
well as the Protestants in a timely manner.
- Petitioner Amin and Zoha Enterprise, Inc., d/b/a USA Grocers Conoco, through its president
Mirza Umer Aftab, seeks an off-premises beer and wine permit for the business known as
USA Grocers Conoco, which is located at 2391 Reidville Road, Spartanburg, SC.
- Mirza Umer Aftab is the President and Chief Executive Officer of Amin and Zoha Enterprise,
Inc. Saima E. Abbasi is the Secretary of the corporation. The permit is to be issued in the
name of Mirza Umer Aftab.
- Naeem Haq appeared at the hearing to represent Petitioner. Mr. Haq is the manager of the
location and, therefore, is an employee of Petitioner.
- Mirza Umer Aftab is twenty-seven years old. He is a resident and citizen of the state of
South Carolina and has been for more than thirty days prior to the filing of the application.
He has never held a license or permit in his own name and, therefore, has never had a license
or permit revoked. Mr. Aftab is of good moral character and has never been convicted of a
crime.
- Saima E. Abbasi is twenty-nine years old. She is a resident of the state of South Carolina and
has been for more than thirty days prior to the filing of the application. She has never held a
license or permit in her own name and, therefore, has never had a license or permit revoked.
Ms. Abbasi is of good moral character and has never been convicted of a crime.
- Notice of this application appeared at least once a week for three consecutive weeks in The
Spartanburg Herald-Journal, a newspaper of general circulation in the local area where
Petitioner intends to operate this business.
- Notice of the application also was given by displaying a sign for a minimum of fifteen (15)
days at the site of the location.
- The location is a convenience store that sells miscellaneous grocery items and gasoline.
- The location is in a rural part of Spartanburg County, outside the city limits of Spartanburg,
South Carolina. The location is situated on property owned by Southeast Petroleum Inc.
Petitioner leases the property from Southeast Petroleum Inc.
- There are no churches, schools, or playgrounds within five hundred feet of the proposed
location. According to the SLED investigation in this case, the Westgate Baptist Church and
School is located approximately six-tenths of a mile from the location.
- No evidence was presented at the hearing of any law enforcement problems having occurred
at or around the location even though the location has been operating under a temporary beer
and wine permit. Furthermore, the location has not been ticketed for a violation while
operating under the temporary permit.
- The immediate area of the location, which is approximately one-eighth of a mile from I-26, is
predominantly commercial. There are several other licensed businesses in the area of the
location, including a Bi-Lo store and an ABC store.
- The hours of operation are 6:30 a.m. until 10:30 p.m. Monday through Friday, 6:30 a.m. until
11:00 p.m. Saturday, and 8:00 a.m. until 10:00 p.m. Sunday.
- The location has exterior lighting and ten parking spaces.
- Four individuals filed protests to the issuance of the off-premises beer and wine permit. Only
Reverend William Bethea, pastor of the Westgate Baptist Church and principal of the
Westgate Baptist School, appeared at the hearing and offered sworn testimony.
- Reverend Bethea opposes the granting of the permit because he believes alcohol is already
"abundantly available" in the area and the location is so close to the Westgate Baptist Church
and School.
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. 2000) and Chapter 23 of Title 1 of the Code of
Laws of South Carolina 1976 Annotated, as amended, the Administrative Law Judge Division
has personal and subject matter jurisdiction in this case.
- S.C. Code Ann. § 61-4-520 (Supp. 2000), which sets forth the requirements for the issuance
of a beer and wine permit, provides in pertinent part:
No permit authorizing the sale of beer or wine may be issued unless:
(1) The applicant, any partner of 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.
. . . .
(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.
- ALJD Rule 9A provides that "[a] partnership, corporation or association may be represented
by any member, officer, director or duly authorized employee." In this case, Naeem Haq
properly represented Petitioner as Petitioner's duly authorized employee.
- 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 a 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).
- In evaluating the issuance of a beer and wine permit, the proximity of the location to a
church, school, or playground is a proper ground on which the location may be found to be
unsuitable and the permit denied. Byers v. South Carolina Alcoholic Beverage Control
Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). In this case, the location is not within an
improper proximity to churches, schools, or playgrounds.
- The judge may consider whether there have been any law enforcement problems in the
general area. Schudel v. South Carolina Alcoholic Beverage Control Comm'n, 276 S.C. 138,
276 S.E.2d 308 (1981). Absent evidence of any law enforcement problems at this location
thus far, the potential for problems is not a basis on which to deny the application in this case.
- The judge also may consider the proximity or the absence of other licensed locations in the
immediate vicinity. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the
issuance of a beer and wine permit to Petitioner is consistent with the general character of the
area around the location.
- Unless there is sufficient evidence of an adverse impact on the community, the application
must be granted if the statutory criteria are satisfied. The fact that a Protestant objects to the
issuance of a permit is not 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).
- 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 on opinions, generalities, and conclusions or
whether the case is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
The Protestant objects to the sale of alcohol in general and the increased availability of
alcohol in particular. These opinions, however, are not a valid legal basis for denying the
application in this case. The sale of beer and wine is a lawful, regulated enterprise in South
Carolina. Petitioner only needs to satisfy the legislative requirements in order to obtain a beer
and wine permit.
- I conclude that Petitioner has met all of the statutory requirements for holding an off-premises beer and wine permit at the location. I further conclude that the location is proper
and suitable for granting the permit.
ORDER
Based on the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the South Carolina Department of Revenue must issue an off-premises beer and wine permit in the name of Mirza Umer Aftab to Amin and Zoha Enterprise,
Inc., d/b/a USA Grocers Conoco, located at 2391 Reidville Road, Spartanburg, SC, upon
payment of the appropriate fees.
AND IT IS SO ORDERED.
__________________________________
MARVIN F. KITTRELL
Chief Administrative Law Judge
July 6, 2001
Columbia, South Carolina
1. On the original application for a beer and wine permit, submitted September 14, 2000, the address of
the location was listed as 2401 Reidville Road. Although the location has not moved, the address has
changed to 2391 Reidville Road. The case caption and all references in this order to the address of the
location reflect the current address. |