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.
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.
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.
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
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