ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2006) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2006). C&M Package Shop, LLC #2, d/b/a C&M Package Shop, LLC #2 seeks a retail liquor license for its location at 59 Main Street, Varnville, South Carolina.
Respondent South Carolina Department of Revenue (“Department”) denied Petitioner’s application for the license because of timely filed protests by Rev. Dr. Thomas H. Kelly, Cecelia B. Eaddy, Frank A. McClure, Jr., Dr. Anthony Rea, Shirley W. Robinson, and Rev. Harold Bailey.
A hearing on this matter was held at 2:00 p.m., Thursday, September 6, 2007, at the offices of the Administrative Law Court in Columbia, South Carolina. All parties appeared at the hearing, along with Protestants Rev. Kelly, Dr. Rea, and Rev. Bailey. Protestants Cecelia B. Eaddy, Frank A. McClure, Jr., and Shirley W. Robinson did not attend the hearing.
After listening to the testimony and weighing all evidence presented at the hearing, this Court finds that Petitioner’s retail liquor license shall 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. The ALC has personal and subject matter jurisdiction.
2. Notice of the time, date, place and subject matter of the hearing was timely given to all parties and the Protestants.
3. The Petitioner seeks a retail liquor license for its location at 59 Main Street, Varnville, South Carolina.
4. The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2006) concerning the age, residency, and reputation of the Petitioner 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.
5. The Petitioner is of sufficient moral character to receive a retail liquor license.
6. Carl W. Kinard testified on behalf of the Petitioner. Mr. Kinard is the owner/operator of the proposed location. Mr. Kinard is a life-long resident of Hampton County and owns various rental units in the area. The proposed location is zoned for commercial use. Mr. Kinard indicated that his wife, Willie Mae Kinard, will run the day to day operations of the proposed location. Mr. Kinard and his wife own another liquor store in the Brunson, South Carolina area. Mr. Kinard noted that he has never had any problems, with law enforcement or otherwise, at the Brunson liquor store. Mr. Kinard said that he would certainly abide by the law if granted the license in question. Lastly, Mr. Kinard noted that the proposed location is surrounded by other commercial entities and that parking is available on the street.
7. Willie Mae Kinard also testified on behalf of the petitioner in this matter. Mrs. Kinard and her husband own and operate a Brunson area liquor store. Mrs. Kinard indicated that she intends to run the proposed location in a similar manner. She emphasized that there have never been any issues relating to loitering or public intoxication at the Brunson location. Mrs. Kinard said that she would contact law enforcement if there were any issues of this kind at the proposed location.
8. Rev. Kelly is the pastor of First Baptist Church in Varnville, SC. Rev. Kelly’s protest centered on concerns he has relating to the presence of a liquor store in the town. Primarily, Rev. Kelly noted that the community had problems with a liquor store that was once located in the proximate area of the proposed location. Rev. Kelly noted that when this liquor store was open, its patrons would often create public disturbances such as public urination, intoxication, and loitering.
9. Rev. Bailey is a new resident of the Varnville area. His protest mirrored may of the concerns raised by Rev. Kelly. Rev. Bailey also noted the close distance of the proposed location to an area church. Rev. Bailey indicated that he has no problem with a person being able to earn a livelihood, however he felt that the presence of a liquor store in the area doesn’t mesh well with the overall character of the town of Varnville.
10. Dr. Rea’s protest centered on his concerns about public intoxication and the overall ill-effects presented by liquor stores. Dr. Rea lives less that ½ mile from the proposed location, attends church less than ¼ mile from the proposed location, and owns a business on Main Street. Like Rev. Kelly, Dr. Rea indicated that residents have had problems with liquor stores in the past. These problems included, but were not limited to, public intoxication, public nuisance, and public urination. He noted that his patients were discouraged from going to his office because they were intimidated by intoxicated patrons of the now closed liquor store. Dr. Rea noted that the police force in the area is undermanned and as such, they cannot effectively control issues relating to public intoxication. Dr. Rea is on the town planning committee. He noted that many local residents want to change the zoning regulations in order to prevent liquor stores from being located within the town. Lastly, Dr. Rea indicated that he was concerned that the town would get a bad reputation if the proposed license is granted, and stated that a liquor store does not conform to the overall character of the town.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. S.C. Code Ann. § 1-23-600 (Rev. 2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Additionally, S.C. Code Ann. § 61-2-260 (Supp. 2006) grants the Administrative Law Court the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
2. “[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).
3. 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).
4. S.C. Code Ann. § 61-6-110 et seq. (Supp. 2006) sets forth the requirements for determining eligibility for a retail liquor license.
Two Step Analysis
5. A two step analysis is needed for reviewing a retail liquor license: a distance measurement and a proximity factor.
Under the distance measurement, a "no license zone" may exist for schools, playgrounds, and churches within 300 feet (if in a municipal area) and 500 feet (if in a non-municipal area) of a proposed location. See S.C. Code Ann § 61-6-120 (Supp. 2006) ("[DOR] shall not grant or issue any license provided for in this article or Article 7 of this chapter, if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality.").
However, in addition to the distance measurement, case law establishes a second proximity test for a liquor license which applies even if the proposed location is permissible under S.C. Code Ann § 61-6-120 (Supp. 2006). The second test asks whether the proposed location is suitable under a fact-based case by case analysis. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if specific statutory distance criteria are satisfied, a liquor license is properly granted only if the location is a proper location).
Distance Measurements for Retail Liquor License
6. The starting point for the analysis of the retail liquor license is the distance measurements of S.C. Code Ann. 61-6-120(A). Since the location under review is within a municipality, the statute initially imposes a separation of 300 feet between the proposed location and churches and schools. Here, the SLED report indicates that the distance requirements of § 61-6-120 have been complied with.
Proximity Requirement for Retail Liquor License
7. However, notwithstanding the fact that an applicant meets the statutory distance measurements imposed for retail liquors, the retail liquor applicant must nonetheless demonstrate that the location is a suitable location. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if the specific statutory distance criteria of 500 feet or 300 feet to a church, school, or playground are satisfied, a retail liquor license is properly granted only if the location is a suitable location). Therefore, a retail liquor license may not be granted unless the location of the place of business is a proper location. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
8. Although “proper location” is not statutorily defined, 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).
9. The determination of suitability of location is not necessarily a function solely 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 v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
10. 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, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).
11. 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. Alcoholic Beverage Control 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 or suitability of the proposed business location of an applicant for permits and licenses to sell alcoholic beverages using broad but not unbridled discretion. Byers v. S.C. Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
12. 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).
13. I conclude that the Petitioner has met its burden of proof in showing that it meets all of the statutory requirements for holding a retail liquor license. Although cognizant of the Protestants’ concerns, I conclude that the proposed location is a proper one for granting the license. I find that the proposed location is suitable for Petitioner to operate with a retail liquor license and that Petitioner’s operations will not be detrimental to the welfare of the surrounding community.
14. In reaching a decision in this matter, this tribunal is constrained by the record before it and by the applicable statutory and case law. Here, Petitioner meets all of the statutory and regulatory criteria enacted by the South Carolina General Assembly for the issuance of a retail liquor license. There has not been a sufficient evidentiary showing that the location is unsuitable for Petitioner’s proposed liquor sales or that the issuance of the license would have an adverse impact on the surrounding community.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED that the Department resume processing Petitioner's application and issue a retail liquor license to Petitioner upon payment of the proper fees and costs.
AND IT IS SO ORDERED.
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JOHN D. MCLEOD Administrative Law Judge |
