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:
McColl Discount 40, d/b/a McColl Discount Liquor vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
McColl Discount 40, d/b/a McColl Discount Liquor

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
07-ALJ-17-0014-CC

APPEARANCES:
For the Petitioner:
Kenneth E. Allen, Esquire

For the Respondent:
Milton G. Kimpson, Esquire

For the Protestants:
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), S.C. Code Ann. § 1-23-600(B) (Supp. 2006), and S.C. Code Ann. § 61-2-260 (Supp. 2006). The petitioner, McColl Discount 40, d/b/a McColl Discount Liquor (“Petitioner”), applied for a retail liquor license pursuant to §§ 61-6-100 et seq. for the location at 200 North Main Street, McColl, South Carolina 29570. Mr. Larry Honeycutt, Mr. John B. Pearce, and Mr. Verd Odom (“Protestants”) filed written protests to the Petitioner’s application. Respondent South Carolina Department of Revenue (“Department”) denied the application pursuant to § 61-6-185 due to the receipt of the Protestants’ valid public protests.

After notice to the parties and the Protestants, the court held a hearing on this matter on February 22, 2007. Both parties and the Protestants 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 subject to the conditions detailed below.

STIPULATIONS

At the conclusion of the hearing, the parties stipulated that the Petitioner would not place signage or advertisements on the north side of the proposed location. The north side of the proposed location refers to the side of the building that faces Main Street United Methodist Church.

ISSUE

The issues raised in this matter are (1) the suitability of the location, and (2) whether the location meets the statutory distance requirements. § 61-6-910(2); § 61-6-120; 23 S.C. Code Ann. Regs. 7-303 (Supp. 2006).

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.[1]

Evidence was presented regarding all of the relevant statutory criteria. Notice of the time, date, place, and subject matter of the hearing was given to all parties and the Protestants.

The Petitioner seeks a retail liquor license for the location at 200 North Main Street, McColl, South Carolina 29570. The proposed location is inside the municipal limits of McColl. Notice of the application was lawfully posted at the location and published in a newspaper of general circulation.

Mr. Sukhwinder Singh Nagra (“Nagra”) and Mr. Navjot Singh Goraya (“Goraya”) are the principal members of the business seeking the requested license. They are over the age of twenty-one. They are of good moral character and have never had a permit or license to sell beer, wine, or liquor revoked. They have no criminal records and do not owe the state or federal government any delinquent taxes, penalties, or interest. Nagra 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 Petitioner seeks a retail liquor license for McColl Discount Liquor, a liquor store. Goraya stated that he and Nagra own the convenience store next door to the proposed location. The convenience store has been permitted to sell beer and wine for off-premises consumption for almost two years without any citations for violations of the alcoholic beverage control statutes or incidents necessitating police involvement. Further, Goraya testified that prior to becoming licensed in South Carolina he and Nagra were licensed to sell alcohol in California for approximately ten years without any violations or citations. They have also attended classes that provide training regarding obtaining customer identification and recognizing false identification. Goraya also testified that they provide identification training for their employees and maintain a calendar at the counter which indicates the date a person must be born on or before to legally purchase alcohol.

The proposed location has not been previously licensed. The proposed hours of operation for the business are from 9:00 a.m. to 7:00 p.m. Monday through Saturday. The proposed location is on North Main Street near the business district of McColl. The area in the vicinity of the proposed location is substantially commercial, containing businesses such as a convenience store, a car wash, a post office, and a launderette. However, two residences, a parsonage, and Main Street United Methodist Church are located nearby.

The SLED map originally presented in the Department’s file showed a measurement of 383 feet from the church. However, as stated above, testimony from the Protestants cast doubt on whether the SLED agent’s original measurement utilized the proper route under the applicable statute and regulations and the court permitted supplemental evidence on this point. When the Petitioner and the Department supplemented the record with new measurements between the proposed location and the nearest church, the SLED map contained several alternative measurements. The shortest route was measured from the driveway of the church southward along Main Street and crossed Main Street directly in front of the proposed location to its current entrance. This route yielded a measurement of 274 feet. At the hearing the Petitioner offered to relocate the proposed location’s entrance, if necessary, from the Main Street side of the building to the south side. Therefore, the supplemental SLED map also illustrated an alternate measurement following the same route from the driveway of the church but utilizing the new proposed south entrance. This route yielded a measurement of 320 feet. The longest route took into account an alleged town ordinance prohibiting jaywalking, and therefore traveled further down Main Street to the nearest intersection, where it crossed Main Street and traveled northward back to the entrance of the proposed location. The longest route yielded a measurement of 469 feet.

The parsonage is approximately 220 feet from the proposed location and houses the minister of the Main Street United Methodist Church. Occasional Bible study meetings and counseling sessions are held at the parsonage; however, no worship services are conducted there.

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 Protestants testified to various concerns with the proposed location. Mr. Larry Honeycutt testified in opposition to the Petitioner’s application. Honeycutt lives at 203 North Main Street, which is diagonally across the street from the proposed location. His residence is 232 feet from the proposed location.[2] Honeycutt expressed concerns regarding the type of clientele that the store will attract and its impact on the surrounding area.

Mr. John B. Pearce also testified in opposition to the Petitioner’s application. Pearce is the Chairman of the Board of Trustees of Main Street United Methodist Church. He expressed concern with the proximity of the Petitioner’s store to Main Street United Methodist Church and measured the distances between the proposed location and the church and nearby residences. Pearce stated that based on his measurements the proposed location is less than three hundred feet from Main Street United Methodist Church. Pearce conducted his measurements “as the crow flies” rather than according to the method set forth in the applicable statute and regulations. However, Pearce’s evidence revealed that there is a driveway entrance to the church that is the nearest point of entrance to the church grounds from the proposed location. This entrance was not the entrance used by the SLED agent in his initial measurement.

Mr. Verd Odom also testified in opposition to the application.[3] He stated that he initially protested this application because, based on the information in the notice of application, it appeared that the applicant was not a South Carolina resident. He further reiterated Pearce’s position that the proposed location is within three hundred feet of the nearest church and therefore, does not meet the statutory minimum distance requirements.

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 §§ 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

Sections 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 § 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 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).

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).

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. Statutory Distance Requirement

A retail 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. § 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 church, “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 church.” 23 S.C. Code Ann. Reg. 7-303 (Supp. 2006).

4. Conclusions

After carefully weighing the evidence and applying the law as discussed above, the court finds the proposed location to be suitable and otherwise meets the statutory requirements if the entrance to the proposed location is moved to the south side of the building, which is the side facing Gibson Avenue.

Although there are two residences nearby, the area surrounding the proposed location is primarily commercial. No evidence was presented of law enforcement problems either at the proposed location or in the surrounding area. Parking is adequate. The court concludes that, upon relocating the proposed liquor store’s door to the south side of the building, the Petitioner will meet all of the statutory requirements to obtain a retail liquor license contained in §§ 61-6-100 et seq.

Although the Protestants expressed concerns regarding the vicinity of the proposed location to the church and residences, their concerns are too general and speculative to warrant denial. There has not been a sufficient evidentiary showing that the proposed location is unsuitable for the Petitioner’s store or that issuance of the license in question would create problems in or have an adverse impact upon the surrounding community.

The court further notes that, by statute, a liquor store may not be open for business between the hours of 7:00 p.m. and 9:00 a.m., may not be open on Sunday, and may not allow the consumption of liquor on the premises. See § 61-6-1500(A)(1)(a)-(b), (A)(2); § 61-6-4160. Accordingly, the operation of the Petitioner’s store will largely resemble that of any other retail business and will not likely create the sort of problems often associated with establishments licensed for the sale of alcohol for consumption on the premises, or even establishments permitted to sell alcohol for off-premises consumption late into the evening.

The court further finds that if the entrance to the proposed location is moved to the south side of the building as the Petitioner proposes, it will meet the statutory distance requirements. Applying the statutory and regulatory instruction as to measurements for liquor licenses, the court finds that the proposed location is not within three hundred feet of a church, school, or playground if the door is relocated to the south side of the building. See § 61-6-120(A); 23 S.C. Code Regs. 7-303 (Supp. 2006).

Although the proposed location is within three hundred feet of the church parsonage, the parsonage does not meet the statutory definition of a church because it is not “an establishment . . . where religious services are usually conducted.” § 61-6-120(A)(1). The court finds that occasional Bible study meetings and counseling sessions do not constitute “religious services” within the meaning of the statute.

Accordingly, the only church in the vicinity of the proposed location is Main Street United Methodist Church itself. The Petitioner argues that the longest route shown on the supplemental SLED map should be utilized based on a purported city ordinance against jaywalking. See Nathan M. Wolfe, II, The Kroger Co., d/b/a Kroger v. S.C. Dep’t of Rev., 98-ALJ-17-0015-CC, 1998 WL 285604 (S.C. Admin. Law Ct., May 13, 1998). While the court agrees that the “shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare” requires a lawful route, § 61-6-120, the only evidence that a jaywalking ordinance exists is a multiple layer hearsay statement which the Department objected to by letter dated March 21, 2007. Moreover, since the actual ordinance was not presented to the court, its applicability and terms are uncertain. The court therefore declines to use the longer measurement. However, if the entrance to the proposed location is moved to the south side of the building as the Petitioner offered, the proposed location will meet the statutory distance requirement from the church.


ORDER

Based upon the Findings of Fact and Conclusions of Law stated above, the court finds that, with the restrictions listed below, 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 store license for the premises located at 200 North Main Street, McColl, South Carolina 29570, South Carolina in accordance with § 61-2-80 and § 61-6-100, subject to (1) the Petitioner’s relocating the entrance of the proposed location to the south side of the building, and (2) the Petitioner’s stipulation that it will not display on the north side of the property any signage or advertisements indicating that it is a retail liquor outlet.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

April 12, 2007

Columbia, South Carolina



[1] Based on the record submitted to the court by the Department and the testimony of the Protestants, the court held the record open in this matter for thirty days following the February 22 hearing to allow the Department, through the State Law Enforcement Division (“SLED”), to supplement the record with new measurements between the proposed location and the church located near the proposed location. The Petitioner and the Department submitted these measurements on March 21, 2007.

[2] Honeycutt testified that he measured the distance between the corner of his lot and the proposed location to be 129 feet. However, he measured “as the crow flies” and only to the corner of his lot rather than according to the method set forth in § 61-6-120 and S.C. Regs. 7-303.

[3] Odom’s family owns a liquor store approximately one and a half miles from the Petitioner’s proposed location.


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