SC Administrative Law Court Decisions

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, Bacchus Ventures, LLC, d/b/a Village Spirits (“Petitioner”), applied for a retail liquor license pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2007) for the location at 520 Folly Road, Unit 70, in Charleston, South Carolina 29412. Charles B. Aimar and Thomas Cavanaugh^[1] (“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 May 5, 2008. Both parties and Protestant Charles B. Aimar 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.

Steven Andrew Brooks is the sole member of the business seeking a retail liquor license. He is over the age of twenty-one. 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 for a retail liquor store.

The Petitioner seeks a retail liquor license for Bacchus Ventures, LLC, d/b/a Village Spirits, a liquor store. The proposed location has not been previously licensed. It is located in a strip shopping center on the main road to James Island. The area in the vicinity of the proposed location is primarily commercial. In the shopping center with the proposed location is a grocery store with a beer and wine permit and several retail stores. The site of the proposed location was recently rezoned from “Limited Business” to “General Business.” Prior to the rezoning, the zoning ordinances prevented liquor stores from operating in the area.

The nearest residence is over one thousand feet from 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.

Steven Andrew Brooks provided testimony concerning the proposed location and the business generally. Brooks has another permit for a store in Mount Pleasant, South Carolina. Brooks testified that the area surrounding the proposed location is experiencing rapid growth, and that the shopping center in which the proposed location is situated is the most convenient location on James Island.

The Protestant, Charles Aimar, testified that, prior to the recent rezoning, liquor stores were not permitted in that area. Aimar testified that the reason behind the prior zoning ordinances that prohibited liquor stores from operating should be considered in this case. Aimar owns competing liquor stores in the area of the proposed location and feels there are already a sufficient number of retail liquor stores in the area.

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 . . . .” 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, the area surrounding the proposed location is primarily commercial.

The Protestant’s concerns regarding local zoning matters are not within the purview of the ALC. See Heilker v. Zoning Bd. of Appeals for City of Beaufort, 346 S.C. 401, 412, 552 S.E.2d 42, 48 (Ct. App. 2001) (“The local zoning boards, and not the courts, are the primary entities responsible for the planning and development of our communities”); see also S.C. Code Ann. § 6-29-820 (Supp. 2007) (stating that circuit court has jurisdiction over appeals from zoning boards); § 6-29-950 (2004) (stating that circuit court has jurisdiction over enforcement of zoning violations). Furthermore, although the Protestant expressed concerns regarding the number of liquor stores already located in Charleston, 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.

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 520 Folly Road, Unit 70, in Charleston, South Carolina 29412, in accordance with S.C. Code Ann. § 61-6-100.

IT IS SO ORDERED.

__________________________________

PAIGE J. GOSSETT

Administrative Law Judge

May 13, 2008

Columbia, South Carolina