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:
NK Food & Fuel, LLC, d/b/a One Stop #2 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
NK Food & Fuel, LLC, d/b/a One Stop #2

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
08-ALJ-17-0081-CC

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

For the Respondent:
Sean G. Ryan, 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 & Supp. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 61-2-260 (Supp. 2007). The petitioner, NK Food & Fuel, LLC, d/b/a One Stop #2 (“Petitioner”), applied for a retail liquor license pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2007) for the location at 668A West Main Street in West Columbia, South Carolina 29170. Brenda H. Meetze and Micaela D. Spires (“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 April 29, 2008. 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.

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.

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.

Mr. Karamjit Singh is the owner of NK Food & Fuel, LLC, d/b/a One Stop #2, the business seeking a retail liquor license. He is over the age of twenty-one and has never had a permit or license to sell beer, wine, or liquor revoked. Singh currently owns and operates another liquor store in Richland County on Two Notch Road which is four hundred feet from its nearest competitor. He 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 Department determined that the Petitioner met all the statutory requirements.

The Petitioner seeks a retail liquor license for the location at 668A West Main Street, West Columbia, South Carolina 29170. The proposed location is located within the municipal limits of West Columbia on the corner of Main Street (Highway 302) and Emmanuel Church Road. The proposed location adjoins a convenience store, also owned by Singh, which has a beer and wine permit. The proposed location has not been previously licensed. The area in the vicinity of the proposed location is substantially commercial, containing businesses such as a grocery store, a pharmacy, a car wash, and several gas stations.

While a school is located nearby, it is not 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 1,234 feet from the proposed location to the nearest school. Further, the SLED map specifies a measurement of 1,300 feet to the nearest residence.

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 about their concerns regarding the saturation of the retail liquor store market in area of the proposed location. Protestant Meetze owns a liquor store located in the shopping center across the street from the Petitioner’s proposed location. She provided testimony that this will be the third liquor store in the South Congaree area and that, after five years, her business is just beginning to generate a profit. Further, the Protestants expressed concerns that there is not enough business or growth to support a third store 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); § 61-6-170 (Supp. 2006).[1] However, this factor must relate to the effect of overconcentration of retail liquor stores on the public welfare or the surrounding community rather than merely on competing liquor stores.

While [] oversaturation concerns can be raised by potential competitors of the applicant and while denials based on these concerns often have the secondary effect of reducing competition in the liquor business, the primary purpose of such regulations is not to insulate existing liquor licensees from competition, but to promote the public welfare by curbing the excessive retailing of liquor. Accordingly, economic concerns raised by a license applicant’s potential competitors, such as the financial investment a competitor has in his business and the possible economic loss he may suffer if the license is granted, are not relevant factors for consideration in determining whether the proposed location is a suitable place to be licensed . . . . [A]ny claims that an area is adequately served by other licensed outlets must be based upon concrete evidence of adverse consequences of oversaturation . . . .

John D. Geathers & Justin R. Werner, The Regulation of Alcoholic Beverages in South Carolina 195 (2007) (citations omitted) (collecting cases from other jurisdictions addressing objections raised by business competitors).

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, and 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 §§ 61-6-100 et seq.

Although the Protestants expressed concerns regarding the number of liquor stores already located in the South Congaree area of the proposed location, their concerns were based solely on competition with Meetze’s store rather than the public welfare. 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 that it is 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 668A West Main Street in West Columbia, South Carolina 29170, in accordance with § 61-6-100.

IT IS SO ORDERED.

__________________________________

PAIGE J. GOSSETT

Administrative Law Judge

May 6, 2008

Columbia, South Carolina



[1] Unlike some states, South Carolina does not have any per capita limitations on the issuance of retail liquor licenses.


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