SC Administrative Law Court Decisions

Pursuant to notice to the parties, a hearing in this matter was held before me on March 16, 2009, at the offices of the Administrative Law Court in Columbia, South Carolina. Both parties and the Protestant appeared at the hearing. Evidence was introduced and testimony was given. After carefully weighing all the evidence, I conclude that the retail liquor license should be granted.

FINDINGS OF FACT

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

1. Petitioner seeks a retail liquor license for its location at 7230A Parklane Road, Columbia, Richland County, South Carolina.

2. GS Moonglo, LLC, d/b/a Moonglo Package Store, is a corporation in good standing with the South Carolina Secretary of State. Paramjit Singh is the sole owner of GS Moonglo, LLC.

3. Mr. Singh is over the age of twenty-one. He is a legal permanent resident of the United States. He is a resident of the State of South Carolina and has maintained his principal place of abode in this state for at least thirty (30) days prior to making this application.

4. Notice of the application was lawfully posted both at the location and in The Columbia Star, a newspaper of general circulation.

5. Petitioner does not currently hold any other retail liquor licenses, or have an interest, financial or otherwise, in any other retail liquor store. Further, Petitioner has never held any other license for the manufacture or sale of alcoholic liquors.

6. The location is attached to a convenience store near the intersection of O’Neil Court and Parklane Road. The convenience store, which is licensed for the off premises sale of beer and wine, is also owned by Petitioner.

7. There are no residences, churches, schools or playgrounds within five hundred (500) feet of the location.

8. The location’s proposed hours of operation are from 9:00 a.m. to 7:00 p.m., Monday through Saturday.

9. Protestant Edward White is a part owner of Parklane Package Store, a retail liquor store located near the location at 7315 Parklane Road, Columbia, South Carolina. Mr. White objects to the license being issued because of the number of liquor stores already in business in the area.

CONCLUSIONS OF LAW

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. 2007) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 2007) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2007) sets forth the general requirements for determining eligibility for a retail liquor license. S.C. Code Ann. § 61-6-120 (Supp. 2007) specifically provides that a liquor license shall not be issued to a place of business if:

the place of business is…within five hundred feet of any church, school, or playground situated outside a municipality. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along a public thoroughfare from the point of the grounds in use as part of such church, school, or playground…

23 S.C. Code Ann. Regs. 7-303 (Supp. 2007) clarifies how distances from the location to schools, churches, and playgrounds are measured.

4. Additionally, S.C. Code Ann. § 61-6-910(2) (Supp. 2007) provides that an application for a license to sell alcoholic liquors must be denied if “the store or place of business to be occupied by the applicant is not a suitable place.”

5. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness of an applicant for alcohol permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. 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); see also Doe v. Doe, 324 S.C. 492, 502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of fact, “has the authority to determine the weight and credibility of the evidence before him”). 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 Woodall v. Woodall, 322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).

7. Although "proper location" is not statutorily defined, the Administrative Law Court is vested, as the trier of fact, with the authority to determine the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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 operation 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). In determining the suitability of a location, it is proper for this Court to consider any evidence that demonstrates any adverse effect the proposed location will have on the community. Palmer, supra. It is also relevant to consider the previous history of the location. 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). Furthermore, 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. Id.

8. Unless there is 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 Protestant 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); See 48 C.J.S. Intoxicating Liquors § 166 (2004).

9. Permits and licenses issued by this state for the sale of liquor, beer and wine are not property rights. Rather, they are privileges granted in the exercise of the State’s police power to be used and enjoyed only so long as the holder complies with the restrictions and conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance of a license, is likewise authorized to revoke or suspend it for cause. See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).

10. The Department may also seek to suspend or revoke a retail liquor license pursuant to S.C. Code Ann. § 61-6-100 (Supp. 2007).

11. The ultimate crux of Mr. White’s protest is that he will be in direct competition with this liquor store which would economically harm his business. Mr. White contends that the retail liquor license should be denied because there are already several other retail liquor stores within several miles of the proposed location, including his which is located near this proposed location.

S.C. Code Ann. § 61-6-170 (Supp. 2007) sets forth 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.” Furthermore, S.C. Code Ann. § 61-6-910(3) (Supp. 2007) sets forth that “[t]he department must refuse to issue any license under this article or Article 7 of this chapter if the department is of the opinion that…a sufficient number of licenses have already been issued in this State, incorporated municipality, unincorporated community, or other community.” The Department, in this case, would have issued the license but for Mr. White’s protest.

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). Based upon these statutes, I find that the intent of the General Assembly in enacting Sections 61-6-170 and 61-6-910 was not to ensure the economic viability of existing licensed retailers, but to safeguard the public health, safety, and welfare of the citizens who live in the area. Notwithstanding a showing by Mr. White that other licensed retail liquor stores exist within the area of the proposed location, he did not provide any evidence to establish that the public safety, health and welfare of the citizens of this state would be endangered or adversely affected by the issuance of a license in this case. Therefore, the proposed location is suitable with respect to the provisions of Sections 61-6-170 and 910.

Accordingly, the Court finds that Petitioner meets all the statutory requirements for a retail liquor store and authorizes the Department to issue the retail liquor license to Petitioner for its location at 7230A Parklane Road, Columbia, South Carolina upon the payment of all required fees and upon completion of a final inspection conducted by SLED, the results of which certify that Petitioner is in compliance with all applicable statutes and regulations.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the application for a retail liquor license by GS Moonglo, LLC, d/b/a Moonglo Package Store, 7230A Parklane Road, Columbia, South Carolina is GRANTED upon the payment of all required fees and upon completion of a final inspection conducted by SLED, the results of which certify that Petitioner is in compliance with all applicable statutes and regulations.

AND IT IS SO ORDERED.

_________________________________

Marvin F. Kittrell

Chief Judge

April 9, 2009

Columbia, South Carolina