This
matter comes before the Administrative Law Court (ALC or Court) pursuant to
S.C. Code Ann. §§ 1-23-310 et seq. (Supp. 2007), § 61-2-260 (Supp. 2007),
and § 61-6-185 (Supp. 2007) for a contested case hearing. GS Moonglo, LLC,
d/b/a Moonglo Package Store (“Petitioner”), seeks a retail liquor license for its
location at 7230A Parklane Road, Columbia, South Carolina (“location”). Edward
White filed a protest to the application with the South Carolina Department of
Revenue (“Department”). A hearing was required due to the timely filed public
protest.
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