South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Drexell A. Dubose, d/b/a Dalias Bottle and Tobacco Shop vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Drexell A. Dubose, d/b/a Dalias Bottle and Tobacco Shop

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0122-CC

APPEARANCES:
For the Petitioner:
James H. Harrison, Esquire

For the Respondent:
Andrew L. Richardson, Jr., Esquire

For the Protestant:
Pro se
 

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[1] (“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.[2]  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”).[3] 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



[1] Although documents filed with the court prior to the hearing contained the business name “Dalias Bottle and Tobacco Shop,” the Petitioner informed the court during the hearing that the business name would be “Dalias Bottle Shop.”

[2] Although the General Assembly did not provide absolute statutory distance requirements for beer and wine permits as it did for liquor licenses, the proximity to residences, churches, schools, and playgrounds—contrary to the Protestant’s assertions as to the law—may be considered for beer and wine permits as well.  § 61-4-520(6); Smith, 258 S.C. at 504, 189 S.E.2d at 301. Nonetheless, since a beer and wine permit is not sought here, the statutory distance requirements for a liquor license are all that are at issue in this matter.

[3] After the record was closed to Protestants, Parker attempted to argue that Communities in School falls within the statutory definition of “playground.” The court rejects this argument both because it was not timely raised and, even if it had been, the evidence does not show that Communities in Schools, which is a private, non-profit program, is a “place . . . provided by the public or members of a community for recreation.” § 61-6-120(A)(3). Moreover, no evidence was presented that the site contains recreational facilities for children that would fall within the statutory definition of “playground.” John D. Geathers & Justin R. Werner, The Regulation of Alcoholic Beverages in South Carolina 206-07 (S.C. Bar 2007) (noting that “playgrounds” under the statutory definition “must have some separate recreational facilities for children, such as ballfields, swings, or other playground equipment”).


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