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, Hampton Package Shoppe, Inc. (“Petitioner”),
applied for a retail liquor license pursuant to S.C. Code Ann. §§ 61-6-100 et
seq. (Supp. 2006) for the location at 35 East Palmetto Street, Varnville, South Carolina 29944. Rev. Dr. Thomas H. Kelly, Mr. Frank A. McClure, Jr.,
and Dr. Antony Rea (“Protestants”) filed written protests to the Petitioner’s application.
Respondent South Carolina Department of Revenue (“Department”) denied the
application pursuant to S.C. Code Ann. § 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 November 13, 2007. Both parties and Protestant McClure 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.
ISSUE
The
sole issue raised in this contested case is the suitability of the location. See S.C. Code Ann. § 61-6-910(2) (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.
Mr.
Charles C. Young, Sr. and Vickie B. Young are the sole officers of Hampton
Package Shoppe, Inc., the business seeking a retail liquor license. Both are
over the age of twenty-one. Neither has ever had a permit or license to sell
beer, wine, or liquor revoked. Both are legal residents of the State of South Carolina and have maintained their principal place of abode in South Carolina for at
least thirty days prior to the date of application. The Department determined
that Petitioner met all the statutory requirements.
The
Petitioner seeks a retail liquor license for Hampton Package Shoppe, Inc.,
d/b/a Varnville Package Shop, a liquor store. Mr. Young previously conducted a
retail liquor store business in Varnville approximately seventy-five yards from
the proposed location. Mr. Young seeks to change locations for his business
because the building where the business was previously located was in
disrepair. The proposed location has not been previously licensed. It is
located in a shopping center on East Palmetto Street consisting predominantly
of retail stores. The area in the vicinity of the proposed location is
substantially commercial, containing businesses such as a grocery store, a post
office, and numerous retail stores.
While
a residence, churches, and three schools are located nearby, none is located
within 300 feet of the proposed location. The map prepared by the South
Carolina Law Enforcement Division (“SLED”) presented in the Department’s file indicates
a measurement of 658 feet from the proposed location to the nearest church. Further,
the SLED map specifies a measurement of 166 feet to the nearest residence, and
half a mile to the nearest school.
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.
McClure
testified about his concerns regarding the saturation of the retail liquor
store market in such a small town. Specifically, he expressed concerns that,
if licensed, the proposed location will be the fourth to sell alcoholic
beverages in the vicinity.
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 S.C. Code Ann. §§ 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
S.C.
Code Ann. §§ 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 S.C. Code Ann. §
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 the 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).
Other factors may be considered when determining whether a
location is proper. For example, a 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. S.C. Code Ann. § 61-6-120.
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).
The
court may also consider the number of existing retail liquor stores in the
area. S.C. Code Ann. § 61-6-910(3) and § 61-6-170. However, this factor must
relate to the effect of overconcentration of retail liquor stores on the public
welfare or the surrounding community. See John D. Geathers & Justin
R. Werner, The Regulation of Alcoholic Beverages in South Carolina 196
(S.C. Bar 2007). “[A]ny claims that an area is adequately served by other licensed
outlets must be based upon concrete evidence of adverse consequences of
oversaturation, and not solely upon a mere aversion to the sale of alcoholic
beverages.” Id. (citations omitted).
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. Conclusions
After
carefully weighing the evidence and applying the law as discussed above, the
court finds that the proposed location is suitable and otherwise meets the
statutory requirements.
The
proposed location is not within 300 feet of any church, school, or playground.
Furthermore, although there is a residence 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 the Petitioner meets all
of the statutory requirements to obtain a retail liquor license contained in S.C.
Code Ann. §§ 61-6-100 et seq.
Although
McClure expressed concerns regarding the number of liquor stores already
located in Varnville and Hampton County, there has not been a sufficient
evidentiary showing that the proposed location is unsuitable for the Petitioner’s
store or that issuance of a license for an additional retail liquor outlet would
create problems in or have an adverse impact upon the surrounding community. Absent
such a showing, the court finds it appropriate to let the market determine the
proper number of retail liquor stores in the area.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated
above, the court finds that 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 license for the premises located at 35 East Palmetto Street, Varnville,
South Carolina 29944, in accordance with S.C. Code Ann. § 61-6-100.
IT
IS SO ORDERED.
______________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
November 30, 2007
Columbia, South Carolina
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