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).
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
|