ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Ghanu Patel (Patel) filed with the South Carolina Department of Revenue (DOR), an application for
an off-premises beer and wine permit in Marion, South Carolina. Protests were filed by the City of
Marion and the Marion City Police Department both seeking to prevent DOR from granting the
application. Not all of the requirements for obtaining a beer and wine permit are disputed. Rather,
the disputed matter here is whether Patel seeks a permit for a location that is not a proper location.
Since protests were filed pursuant to S.C. Code Ann. § 61-4-525, a contested case before the
Administrative Law Judge Division (ALJD) is required under S.C. Code Ann. §§ 61-2-260 (Supp.
2003), 1-23-600(B) (Supp. 2003) and 1-23-310 (Supp. 2003). The hearing for this dispute was held
Thursday, March 18, 2004, with notice of the date, time, place and subject matter of the hearing
given to the applicant, DOR, and the protestants. Under the evidence in this case, the relevant factors
require granting the off-premises beer and wine permit.
II. Issue
Does Patel meet the requirements for an off-premises beer and wine permit permit in light of an
allegation that the location is improper?
III. Analysis
1. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
A. General Facts of Location
Patel filed an application with DOR for an off-premises beer and wine permit with the application
identified by DOR as AI # 32032344-0. SLED investigated the applicant and the location with the
SLED Agent drawing a map generally depicting the immediate area of the proposed location.
Following the notices posted by SLED and by the applicant, the City of Marion and the Marion City
Police Department challenged the application and presented this controversy.
The proposed business (and the place where the beer and wine permit will be utilized) is located at
503 East Liberty Street in Marion, South Carolina. The business operates as a convenience store
selling typical products including soft drinks, bread, beans, juice, etc. with business hours of Monday
through Saturday from 9:00 a.m to 9:00 p.m. The location will provide neither music nor games and
already has a sign giving notice that no loitering will be permitted.
B. Specific Facts of Location
An alternative school is approximately 300 feet from the proposed location. The area is a mix of
residential and commercial establishments with an insurance company and a car wash across the street
from the location. A liquor store is approximately 700 feet away and an off-premises beer and wine
permit exists at a gasoline station approximately four blocks away. Finally, the proposed location has
previously operated with a beer and wine permit since the early 1970's.
The location has had some criminal activity. For example, while no other crime occurred at the
location in 2003, a robbery took place. As to 2002, no criminal activity occurred. In 2001, a party
unrelated to the current applicant sold beer and cigarettes to a minor. However, no other crime
occurred in 2001. In 2000, six incidents occurred. Two were the theft of bicycles, two involved
threats, one was an armed robbery, and one was disorderly conduct. In 1999, six incidents occurred
with one involving the possession of drug paraphernalia, two involving possession of crack cocain,
and three presenting disorderly conduct.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
A. Law Relevant to Location
Under S.C. Code Ann. § 61-4-520 (Supp. 2003), no beer and wine permit may be granted unless the
location of the place of business is a proper location. In making that determination one of the
relevant factors indicating the unsuitability of a location normally includes the proximity to residences,
schools, playgrounds, and churches. However, the proximity to residences, schools, playgrounds,
and churches"does not apply to locations licensed before April 21, 1986." Under the facts of this
case, the location here was licensed with a beer and wine permit before April 21, 1986. Thus, in this
case, the proximity to residences and schools cannot be used as indicators of unsuitability.
A proper consideration for reviewing a beer and wine permit is that of examining the impact granting
the permit will have upon law enforcement. Evidence that granting the permit will place a strain upon
police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage
Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). For example, one measure of the
strain is evidence of insufficient police to cover the likely crowd that might gather at the location.
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
In this case, the evidence does not show a lack of adequate police coverage. In fact, the testimony
shows that the existing police force is well managed and is capable of responding to needs as they
arise.
Further, the need for likely police intervention must be examined for a potential beer and wine
location. For example, a relevant consideration is whether the law enforcement officers have had
significant problems with public intoxication at or near the location. Roche v. S.C. Alcoholic
Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Here, the evidence does not show
public intoxication as a concern.
In a similar manner, a relevant concern is whether criminal activity in the area creates a constant
source of law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282
S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). In this case, there is some evidence of crime. However,
the evidence does not show an on-going problem sufficient to create a constant source of law
enforcement problems. Rather, other than a robbery in 2003, no crime occurred in 2003 and none
occurred in 2002. As to drug activity in the area, no activity is shown for any recent periods.
Instead, the evidence shows some activity over four years ago. Certainly, while no crime in the area
is the desirable goal, the degree of crime present at the moment is not sufficient to deny an off-premises beer and wine permit.
It is certainly a valid consideration to ask whether the surrounding area is commercial. Taylor v.
Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic Beverage Control
Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Likewise, consideration may be given to
whether other similar businesses that sell beer and wine or alcohol already exist within the area.
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the area has a degree of
commercial development. Likewise, at least one liquor license and an off-premises beer and wine
permit are already in the surrounding area.
Finally, a relevant factor is whether in the recent past beer and wine have been sold at the same
location by former owners and whether the evidence shows that the location is now any less suitable
than during the former time period. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Under
the facts of this case, the location has been operated with a beer and wine permit since the 1970's.
Further, the evidence shows that the new owner has demonstrated his intention to operate the
location in a proper manner. For example, a sign already exists at the location giving notice that no
loitering will be permitted.
B. Ultimate Conclusion as to Location
I have considered all of the factors relevant to the proposed location and have given due weight to
the evidence presented at the hearing. The proposed location does not violate the statutory
requirements for a beer and wine permit relevant to location. S.C. Code Ann. § 61-4-520 (Supp.
2003). Accordingly, Patel's application seeks an off-premises beer and wine permit for a location that
is a proper location.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR is ordered to grant Ghanu Patel's application for an off-premises beer and wine permit at 503
East Liberty Street, Marion, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: April 7, 2004
Columbia, South Carolina |
