SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2000), § 61-6-910 (Supp. 2000), and §§ 1-23-310 et seq. (1986 and Supp. 2000) for a contested case hearing. The Petitioner, West Columbia Liquor Store, through individual licensee Jayesh B. Parikh, seeks a retail liquor license. The Department of Revenue (Department) made a Motion to be Excused stating that but for the protests it received, this license would have been granted. This motion was granted by my Order dated February 7, 2001. A hearing was held on this matter on April 19, 2001 at the offices of the Division in Columbia, South Carolina. Without objection, the Department of Revenue's file was made part of the record in this matter at the hearing.

Protestants C.D. Allen, Jr., Martin C. Ballard, Mansukhlal D. Sangani, and James H. Porter testified at the hearing. The Petitioner objected to the testimony of James H. Porter on the grounds that § 61-6-185 (Supp.2000) requires that a person protesting the issuance of a license state "specific reasons why the application should be denied." Though Mr. Porter's initial letter received by the Department of Revenue on September 21, 2000 did not state a specific reason for his protest, his follow-up statement on the official "ABL Protest" form provided by the Department does state a specific reason. That statement was received by the Department of Revenue on November 21, 2000. Therefore, I considered the testimony Mr. Porter in deciding this case.

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

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, the Respondent, and the Protestants.

2. The Petitioner, Jayesh B. Parikh, is seeking a retail liquor license for the West Columbia Liquor Store. The proposed location is located at 1731A Charleston Highway, West Columbia, South Carolina. The Petitioner currently holds an off-premises beer and wine permit at an adjacent convenience store. None of the Protestants objected to the issuance of that permit.

3. The qualifications set forth in S. C. Code Ann. § 61-6-110 (Supp. 2000) concerning the age, residency, and reputation of the Petitioner and/or licensee are properly established. Furthermore, the Petitioner has not had a license for the sale of alcoholic liquors revoked within the last five years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The licensee has no criminal record and is of sufficient moral character to receive a retail liquor license.

5. There was no evidence that the proposed location is within five hundred feet or unreasonably close to any church, school or playground.

6. No other member of the Petitioner's household has been issued a retail liquor store license. Additionally, the Petitioner has not been issued more than three retail liquor licenses, nor does he have an interest, financial or otherwise, in more than three retail liquor stores.

7. The proposed retail liquor store is located on a busy highway near other commercial establishments as well as some residences. The Petitioner owns the location and has operated a gasoline station with a convenience store at the site for 3½ years. The proposed retail liquor location is in a building adjacent to the convenience store and there will be no physical means of access between the two locations. Furthermore, the proposed retail liquor location will have a separate parking area.

8. The Protestants testified on several issues. Protestant Martin Ballard argued that a retail liquor license should not be issued for the Petitioner's store because children will be walking to school past the location and there is much pedestrian traffic to the convenience store. However, the Petitioner testified that he has never seen a school child pass by his store on foot and that he notices very little pedestrian traffic coming to his store.

9. Protestants Allen, Porter and Sangani argued that there are too many liquor stores in the area. Mr. Allen owns the building which leases the liquor store that is located near the proposed retail liquor store. He admitted he is concerned that the proposed location will be competition for his tenant. Likewise, Mr. Sangani, who operates a competing retail liquor store in the area, contends that if the Petitioner's store is opened, it would economically harm his retail liquor store in the same block. He fears he would lose 60% of his business. However, though the Protestants presented viable concerns for the operation of their businesses, they presented no empirical evidence to sustain those apprehensions.

10. All of the Protestants expressed concerns about increased traffic to the area. However, the evidence established that traffic would increase no matter what type of business went into the location. Furthermore, a retail liquor store may not increase traffic as much as other potential businesses.

11. I find that the evidence did not sufficiently establish that there would be increased danger to school children or other pedestrians due to the licensing of this location to sell liquor. Furthermore, I find that the evidence did not sufficiently establish that there are too many retail liquor stores in the vicinity to safeguard the public health, safety, and welfare of the citizens who live in the area. Therefore, I find the proposed location to be suitable for a retail liquor license.

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. 2000) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2000) grants the Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

2. S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2000) sets forth the requirements for

determining eligibility for a retail liquor license.

3. The ultimate crux of Mr. Sangani's and Mr. Allen's protest is that the Petitioner will be in direct competition with their liquor stores. They, along with Mr. Porter, contend that the retail liquor license should be denied because there is an over-saturation of retail liquor stores in the area of the proposed location. S.C. Code Ann. § 61-6-170 provides 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." (Supp. 2000). 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). The intent of the General Assembly in enacting Section 61-6-170 was not to ensure the economic viability of businesses already licensed in the area, but to safeguard the public health, safety, and welfare of the citizens who live in the area. See Alok Pandey, Pandey, Inc., d/b/a Party Pop Shop/One Stop Liquor v. South Carolina Department of Revenue and Taxation, and Vestal McCarty, Docket No. 95-ALJ-17-0527-CC. However, aside from establishing that two licensed locations already exist within the immediate area of the proposed location, the Protestants did not establish that the public safety, health or welfare is endangered by the issuance of a license in this case because of a plethora of retail liquor stores. Therefore, the proposed location is not unsuitable pursuant to Section 61-6-170.

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location for a license to sell liquor using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). 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 operations 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). Additionally, without 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 license is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

5. 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. 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).

6. The Petitioner meets the statutory requirements for holding a retail liquor license at the proposed location.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the retail liquor license of Petitioner Jayesh B. Parikh and West Columbia Liquor Store be granted upon the Petitioner's payment of the required fees and costs.

AND IT IS SO ORDERED.

_______________________________

Ralph King Anderson, III

Administrative Law Judge

May 11, 2001

Columbia, South Carolina