ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This
matter is before the Administrative Law Court (“ALC”) for a final order and
decision following a contested case hearing pursuant to S.C. Code Ann. §§
1-23-310 et seq. (2005 & Supp. 2007), S.C. Code Ann. § 1-23-600(B)
(Supp. 2007), and S.C. Code Ann. § 61-2-260 (Supp. 2007). The petitioner, Drexell
A. Dubose, d/b/a Dalias Bottle Shop (“Petitioner”),
applied for a retail liquor license pursuant to S.C. Code Ann. §§ 61-6-100 et
seq. (Supp. 2007) for the location at 1807 Jefferson Davis Highway, in Camden,
South Carolina 29020. Carla L. Parker (“Protestant”) filed a written protest
to the Petitioner’s application. Respondent South Carolina Department of
Revenue (“Department”) denied the application pursuant to S.C. Code Ann. § 61-6-185
due to the receipt of the Protestant’s valid public protest.
After
notice to the parties and the Protestant, the court held a hearing on this
matter on May 16, 2008. Both parties and the Protestant appeared at the
hearing. Evidence was introduced and testimony presented. After carefully
weighing all the evidence, the court finds that the Petitioner’s application
for this location should be granted.
ISSUE
The
sole issue raised in this contested case is the suitability of the location. See S.C. Code Ann. § 61-6-910(2) (Supp. 2007).
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, and taking into consideration the burden of persuasion
by the parties, the court makes the following Findings of Fact by a
preponderance of the evidence.
Drexell
A. Dubose is the sole member of the business seeking a retail liquor license. He
is over the age of twenty-one. He is a legal resident of the State of South
Carolina and has maintained his principal place of abode in South Carolina for
at least thirty days prior to the date of application. The Department
determined that the Petitioner met all the statutory requirements for a retail
liquor store.
The
proposed location was previously licensed for the sale of beer and wine. It is
located a few miles north of the city of Camden, South Carolina, on U.S.
Highway 1. The area in the vicinity of the proposed location is primarily
commercial, containing businesses such as a motel, a video rental store, and a
grocery store. There is no evidence that the area has problems with criminal
activity or that the police protection in the area is inadequate. Parking at
the proposed location is adequate.
The
Protestant, Carla L. Parker, testified extensively as to various concerns with
the proposed location. Parker opposed the location due to its proximity to
residences and the location of an after-school program, Communities in Schools,
diagonally across the street. Communities in Schools is a “national non-profit
organization [and] the nation’s leading community based organization helping
kids succeed in school and prepare for life.” (Protestant’s Ex. 6). It is a
community-based program that provides after-school activities for local
children. The evidence does not show that any core curriculum classes for
academic credit toward graduation are offered by Communities in Schools.
Parker
further testified about the local school district’s plan to build new schools
near the proposed location. One of these, a middle school, is currently under
construction approximately three blocks from the proposed location.
Additionally, Parker’s evidence shows that the local school district is
considering locating an elementary school on a site across the street and a
block over from the proposed location. The school board renewed an option for
that site; however, the school board has not yet voted to purchase that site,
and construction has not commenced.
Parker
also testified about the large number of establishments that serve beer, wine,
or liquor in the Camden area. Parker is concerned that another liquor store
will increase the number of alcohol-related deaths in the area. She also
expressed concern over the emotional impact on some of her family members who
have lost loved ones in alcohol-related traffic accidents and who will have to
drive by the proposed liquor store several times per day.
LAW
Based
upon the foregoing Findings of Fact, the court concludes the following as a
matter of law.
1. Jurisdiction
Jurisdiction
over this case is vested with the South Carolina Administrative Law Court
pursuant to S.C. Code Ann. §§ 1-23-310 et seq., § 1-23-600(B), and §
61-2-260. “[T]he issuance or granting of a license to sell beer or alcoholic
beverages rests in the sound discretion of the body or official to whom the
duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic Beverage
Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13,
235 S.E.2d 806 (1977). The weight and credibility assigned to evidence
presented at the hearing of a matter is within the province of the trier of
fact. See S.C. Cable Television Ass’n v. S. Bell Tel. & Tel. Co.,
308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992). Furthermore, a trial judge who
observes a witness is in the best position to judge the witness’s demeanor and
veracity and to evaluate the credibility of his testimony. See, e.g., Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996); Wallace
v. Milliken & Co., 300 S.C. 553, 556, 389 S.E.2d 448, 450 (Ct. App.
1990).
2. Suitability
of Location
a. Generally
S.C.
Code Ann. §§ 61-6-110 et seq. establish the general criteria for the
issuance of retail liquor license. Included in the criteria is the requirement
that the proposed location be a suitable one. See S.C. Code Ann. §
61-6-910(2); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C.
138, 276 S.E.2d 308 (1981).
b. Factors
in Determining Proper Location
“Proper
location” is not statutorily defined, but broad discretion is vested in the
trier of fact to determine the fitness or suitability of a particular location
for the requested permit. See Fast Stops, Inc. v. Ingram, 276
S.C. 593, 281 S.E.2d 118 (1981). In determining whether a proposed location is
suitable, it is proper for this tribunal to consider any evidence that shows
adverse circumstances of the location. Kearney v. Allen, 287 S.C. 324,
326, 338 S.E.2d 335, 337 (1985); Palmer, 282 S.C. at 249, 317 S.E.2d at
478 (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)). The
determination of suitability of location is not necessarily solely a function
of geography. Rather, 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, 287 S.C. at
326-27, 338 S.E.2d at 337; Schudel, 276 S.C. at 138, 276 S.E.2d at 308. Further,
a liquor license or permit may be properly
refused on the ground that the location of the establishment would adversely
affect the public interest, that the nature of the neighborhood and of the
premises is such that the establishment would be detrimental to the welfare . .
. of the inhabitants, or that the manner of conducting the establishment would
not be conducive to the general welfare of the community.
48 C.J.S. Intoxicating Liquors § 168 at 366 (2004).
Other factors may be
considered when determining whether a location is proper. For example, a liquor license shall not be granted if
the place of business is within 300 feet (if within a municipality) or within
500 feet (if outside a municipality) of any church, school, or playground.
S.C. Code Ann. § 61-6-1820(3); § 61-6-120. The Alcoholic
Beverages, Beer and Wine regulations provide specific guidance on how the
distance is measured for liquor licenses.
To determine the distance between a proposed location and a school, “the
distance shall be measured from the nearest entrance of the place of business
by following the shortest route of ordinary pedestrian or vehicular travel
along the public thoroughfare to the nearest point of entrance to the grounds
of the . . . school.” 23 S.C. Code Ann. Regs. 7-303 (Supp. 2007). Section
61-6-120 defines a “school” as “an establishment, other than a private
dwelling[,] where the usual processes of education are usually conducted.”
Additionally,
consideration can be given to the impact the issuance of the license will have
on law enforcement. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191
(1973); Roche v. S.C. Alcoholic Beverage Control Comm’n, 263 S.C. 451,
211 S.E.2d 243 (1975). Denial is appropriate where the public areas
surrounding the proposed location have been the source of constant law
enforcement problems or significant problems with public intoxication. Roche,
263 S.C. at 451, 211 S.E.2d at 243. Another pertinent factor is whether police
have been summoned to the scene on prior occasions when licensed to another
party. Schudel, 276 S.C. at 141-42, 276 S.E.2d at 309-10. It is
relevant whether the location is near other locations that have either been a
constant source of law enforcement problems or are locations where young people
congregate and loiter. Palmer, 282 S.C. at 250, 317 S.E.2d at 478.
Similarly,
consideration can be given to whether the location is heavily traveled or
creates a traffic danger. Id. Furthermore, whether the location has in
the recent past been licensed and whether the location is now more or less
suitable than it was in the past is a relevant factor. Taylor v. Lewis,
261 S.C. 168, 198 S.E.2d 801 (1973). Finally, a valid consideration is whether
the surrounding area is substantially commercial. Id.; Byers v. S.C.
Alcoholic Beverage Control Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App.
1984).
The
court may also consider the number of existing retail liquor stores in the area.
S.C. Code Ann. § 61-6-910(3) and § 61-6-170. However, this factor must relate
to the effect of overconcentration of retail liquor stores on the public
welfare or the surrounding community. See John D. Geathers & Justin
R. Werner, The Regulation of Alcoholic Beverages in South Carolina 196
(S.C. Bar 2007). “[A]ny claims that an area is adequately served by other licensed
outlets must be based upon concrete evidence of adverse consequences of
oversaturation . . . .” Id. (citations omitted).
Without
sufficient evidence of an adverse impact on the community, a license
application must not be denied if the statutory criteria are satisfied. The
fact that the issuance of a license is protested is not a sufficient reason, by
itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 166 (2004). Moreover, the denial of a license to an applicant on the ground
of unsuitability of location is without evidentiary support when relevant
testimony of those opposing the requested license or permit consists entirely
of opinions, generalities, and conclusions not supported by the facts. Taylor,
261 S.C. at 171, 198 S.E.2d at 802.
3. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds that the proposed location is suitable and otherwise meets the
statutory requirements. The South Carolina Law Enforcement Division (“SLED”)
determined that the proposed location is not within 500 feet of any church,
school, or playground. Furthermore, the area surrounding the proposed location
is primarily commercial.
Although
the Protestant raised concerns regarding the proximity of the proposed location
to the Communities in Schools site, Communities in Schools does not fall within
the definition of “school” under § 61-6-120. It
is clearly not “an establishment . . . where the usual processes of education
are usually conducted.” S.C. Code Ann. § 61-6-120 (Supp. 2007) (definition of
“school”). Moreover,
even if it were, no evidence was presented that Communities in Schools is less
than 500 feet from the proposed location when the proper method for measuring
pursuant to 23 S.C. Code Ann. Regs. 7-303 is utilized.
In
addition, Parker’s concern about the proposed location’s proximity to a
potential site for a new school is simply too attenuated to warrant denial of
the license, as the school district has not yet purchased the land, much less
commenced construction. The school district’s unconsummated plan to construct
a school nearby does not preclude the issuance of the license sought here.
Furthermore,
although the Protestant expressed concerns regarding the number
of liquor stores already located in and around Camden, there has not been a sufficiently
specific evidentiary showing that the proposed location is unsuitable for the
Petitioner’s store or that issuance of a license for an additional retail
liquor outlet would create problems in or have an adverse impact upon the
surrounding community. Absent such a showing, the court finds it appropriate
to let the market determine the proper number of retail liquor stores in the
area.
Finally,
Parker’s assertions regarding the emotional impact of a neighboring liquor
store on family and friends in the area, although sincere, are unsupported by admissible
evidence and are insufficient to warrant denial of the license sought.
Moreover, no evidence was presented of law enforcement problems either at the
proposed location or in the surrounding area. The court therefore concludes
that the Petitioner meets all of the statutory requirements to obtain a retail
liquor license contained in S.C. Code Ann. §§ 61-6-100 et seq.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that the Petitioner meets all of the statutory
requirements for a retail liquor license. It is therefore
ORDERED that the Department shall GRANT Petitioner’s application for a retail
liquor license for the premises located at 1807 Jefferson Davis Highway, in
Camden, South Carolina 29020, in accordance with S.C. Code Ann. § 61-6-100.
IT
IS SO ORDERED.
__________________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
June 4, 2008
Columbia, South Carolina
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