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. 2007), and S.C.
Code Ann. § 61-2-260 (Supp. 2007). The petitioner, Stokes Package Store, LLC,
d/b/a Crestview Package Store (“Petitioner”), applied for a retail liquor
license pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2007) for
the location at 1350 D Crestview Drive in Easley, South Carolina 29642. Adelle
C. Barber, E. Wayne Barber, Donna B. Billingsley, Wilfredo E. and Carol H.
Boerin, Debra J. Moyer, John Strickland, and Carole Walters (“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 March 11, 2008. Both parties and the above-listed 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.
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. 2007).
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.
Elizabeth
Stokes is the sole member of the business seeking a retail liquor license. She
is over the age of twenty-one. She is a legal resident of the State of South
Carolina and has maintained her principal place of abode in South Carolina for
at least thirty days prior to the date of application. The Department
determined that the Petitioner met all the statutory requirements for a retail
liquor store.
The
Petitioner seeks a retail liquor license for Stokes Package Store, LLC, d/b/a
Crestview Package Store, a liquor store. The proposed location has not been
previously licensed. It is located in an end unit of a strip shopping center
on the corner of Crestview Drive and Sheffield Road in the city limits of Easley. The area in the vicinity of the proposed
location consists of a mixture of residential neighborhoods and businesses. The
site of the proposed location is zoned as a “Neighborhood Commercial District.”
In
the shopping center with the proposed location is a convenience store with a
beer and wine permit and several retail stores. Directly across the street
from the proposed location is a medical office. The shopping center is
immediately adjacent to a vacant lot, beyond which lies the Smithfield Golf
Course and Country Club (“Country Club”). The Country Club has a swimming pool
and tennis courts where children congregate in the summers. The Country Club
also has a restaurant and bar that has an on-premises beer and wine permit and
license to sell liquor by the drink.
While
there are several residences nearby, none is located within 300 feet of the
proposed location. 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.
Elizabeth
Stokes provided testimony concerning the proposed location and the business
generally. Stokes is a lifelong resident of Pickens County. She is a registered
nurse and is currently a diabetes nurse educator with Palmetto Health Baptist.
She is seeking to open this liquor store in preparation for retirement. Stokes
chose this location due to the proximity to her residence and based on the
current traffic that passes in front of the shopping center. Stokes testified
that she does not intend to solicit customers through advertising but rather plans
to capture the market consisting of the existing traffic that passes by the
store daily. She intends to be an unobtrusive business owner and will not have
garish or offensive signage. Further, she will not post any signage or advertising
designed to appeal to children or teenagers. She will not provide any seating
directly outside the proposed location and Stokes testified that she will
contact local authorities if necessary to control any loitering.
The
Protestants testified to various concerns with the proposed location. Carole
Walters provided general testimony as a spokesperson for many of the
Protestants. The Protestants expressed general fears regarding the type of
clientele that the store will attract and its impact on the surrounding area. The
Protestants believe that due to the number of residential neighborhoods nearby,
the area should be limited to family friendly businesses. They do not consider
a liquor store to be appropriate for the area. Additionally, the Protestants
expressed safety concerns with the proposed location due to the fact that many
of the neighborhood children and teenagers walk through the shopping center’s
parking lot on their way to the swimming pool in the summertime. There are no
sidewalks in the area, and the streets surrounding the proposed location are
heavily traveled, resulting in traffic congestion during the morning and evening
commutes. Therefore, the children generally traverse the parking lot to reach
the swimming pool rather than walking on the sides of the street. The
Protestants fear that the proposed liquor store would increase traffic in the
area and increase the likelihood that a child could be struck by entering and
exiting vehicles.
The
Protestants also conducted measurements between the proposed location and
various points of the Country Club. None of these measurements was less than
300 feet. The closest measurement was from the parking lot of the Country Club
swimming pool to the parking lot of the shopping center, which resulted in an
approximate measurement of 350 feet. The Protestants measured these distances
in a straight line from one point to the other, through the vacant lot between
the Country Club and the shopping center. The Protestants testified that they
were unaware of Department regulations specifying how distance measurements are
to be conducted. However, the Protestants asserted that their measurements demonstrated
the general proximity of the swimming pool to the proposed location.
Finally,
the Protestants testified that they feel there are already a sufficient number
of retail liquor stores in the area, as there are five liquor stores within
five miles of the proposed location and numerous locations that have beer and
wine permits. The closest liquor store is 1.7 miles from the proposed
location. They believe that the needs of the area are adequately served by the
existing outlets. The Protestants also expressed fears that the opening of a
retail liquor store in close proximity to their homes would result in
devaluation of their property.
John
Strickland also testified in opposition to the Petitioner’s application.
Strickland stated that he first moved to this area in 1990 and that he selected
this area in part due to his understanding that it would be an alcohol-free
area based on information he received from the prior owner of the shopping
center. He reiterated the concerns expressed by Walters concerning the safety
of neighborhood children and the potential devaluation of his property.
Wilfredo
Boerin also testified in opposition to the Petitioner’s application. Boerin is
the closest resident to the proposed location. His home is diagonally across
the street from the proposed location. He has a teenaged daughter and emphasized
his concern for the neighboring children’s safety and the proximity of the
swimming pool to the proposed location. Finally, Boerin testified that there
are several existing liquor outlets in the area and requested that this license
should be denied on that basis.
Finally,
Debra Moyer testified in opposition to the Petitioner’s application. Moyer is
a surgery technician at Shriner’s Hospital. Her testimony related to the
alcohol-related traumas she has witnessed during her career. Further, she
expressed a concern as to the lengths that underage persons will go to obtain alcohol
and objected to a liquor store being licensed near these residential neighborhoods.
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 are residences nearby, the area surrounding the
proposed location is zoned as a “Neighborhood Commercial District.” The city
of Easley zoning ordinance states that a Neighborhood Commercial District
is intended to meet the commercial and
service needs generated by nearby residential areas. Goods and services
normally available in this district are of the “convenience variety.” The size
of any such districts should relate to surrounding residential markets and the
locations should be at or near major intersections.
Further, the
ordinance explains that “retail store[s] including convenience store[s],
provided there is no external storage of inventory, parts, machinery or
equipment” are permitted in this district.
The
court finds that the Protestants’ concerns regarding the neighborhood children
and the potential devaluation of their property, though sincere, are simply too
general and speculative to warrant denial of the license sought. Moreover, the
Protestants’ main concerns related to their fears regarding impaired drivers
and children being negatively influenced by the presence of alcohol. Although
children and teenagers congregate at the Country Club and the swimming pool
located
there, notably, the Country
Club itself is licensed to sell beer, wine, and liquor. Further, the Country
Club’s permits are for on-premises consumption. The court observes that the
instant application is for a retail liquor store and, as such, no on-premises
consumption is permitted. Accordingly, the risk regarding impaired drivers and
the exposure of children to drunken behavior and other problems associated with
nightclub-type establishments is appreciably lessened.
Additionally, Stokes testified that she intends to comply with the law that
prohibits retail liquor stores from displaying advertisements that may appeal
to an underage market. See S.C. Code Ann. § 61-6-1510. She further
demonstrated an intent to proactively address any loitering. The court therefore
finds that the Protestants’ fears are too tenuous to demonstrate an adverse
impact on the surrounding community.
Although
the Protestants expressed concerns regarding the number of liquor stores
already located in Easley, 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.
The
Protestants also voiced concerns that placing a liquor store here will increase
traffic. However, Stokes testified that she simply hopes to capture the
traffic that is already there and has no plans to advertise. Further, there is
no evidence to suggest that traffic caused by licensing this location would be
any greater than the traffic generated by any retail store that may lease this
unit. See John D. Geathers & Justin R. Werner, The Regulation of
Alcoholic Beverages in South Carolina 196-97 (S.C. Bar 2007).
Finally,
no evidence was presented of law enforcement problems either at the proposed
location or in the surrounding area. 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.
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 1350 D Crestview Drive in Easley,
South Carolina 29642, in accordance with S.C. Code Ann. § 61-6-100.
IT
IS SO ORDERED.
__________________________________
PAIGE J.
GOSSETT
Administrative
Law Judge
March 27, 2008
Columbia, South Carolina
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