South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Isaiah N. Foggie d/b/a MI Package Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Isaiah N. Foggie d/b/a MI Package Store

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0237-CC

APPEARANCES:
Petitioner & Representative:
Isaiah N. Foggie d/b/a MI Package Store, Christian G. Spradley, Esquire

Respondent & Representative:
South Carolina Department of Revenue, Lynn Baker, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case

 

Isaiah N. Foggie (Foggie) filed with the South Carolina Department of Revenue (DOR), an application for a retail liquor license for B12894 Hwy 72 West, Cross Hill, South Carolina. A protest was filed by Reverend Willie Johnson, pastor of St. John Baptist Church seeking to prevent DOR from granting the application.

 

In this matter, not all of the requirements for obtaining a retail liquor license are disputed. Rather, the granting or denying of the license turns upon the disputed matter of whether Foggie meets the requirements of providing a location that is a proper location.

 

Protests were filed pursuant to S.C. Code Ann. Sec. 61-6-185 resulting in a contested case before the Administrative Law Court (ALC) under S.C. Code Ann. §§ 61-2-260 (Supp. 2004), 1-23-600(B) (Supp. 2004) and 1-23-310 (Supp. 2004). The evidence and relevant factors require granting the requested license.

 

 

 


II. Issue

 

Does Foggie meet the requirements for a retail liquor license in light of an allegation that the location is improper?

 

III. Analysis

 

A. Findings of Fact

 

Based on the preponderance of the evidence, the following findings of fact are entered:

 

On or about March 1, 2005, Foggie filed an application with the Department of Revenue for a retail liquor license. The application is identified by DOR as AI # 32036293-2. The applicant and the location were investigated by SLED and the investigating agent drew a map generally depicting the immediate area of the proposed location. Following the notices posted by SLED and by the applicant, Rev. Willie Johnson of St. John Baptist Church challenged the application and presented this controversy. The hearing for this dispute was held July 19, 2005, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

 

The proposed business (and the place where the retail liquor license will be utilized) is located at B12894 Hwy 72 West, Cross Hill, South Carolina. The business will operate within legal hours and on permissible days.

 

Liberty Spring Presbyterian Church is six-tenths of a mile from the proposed location, and St. John Baptist Church is approximately 4 miles from the proposed location. St. John Baptist Church has experienced some theft in the past and is concerned about loitering in the area. However, St. John Baptist Church primarily opposes the license on moral grounds.

 

B. Conclusions of Law

 

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

 

The only matter disputed here is whether the location is proper. Generally, two criteria dictate the appropriateness of the location of a retail liquor store: the distance to churches, schools, and playgrounds and whether the location is suitable.

 

1. Distance to Churches

 

For locations in a non-municipality, the proposed location cannot be within five hundred feet of any church, school, or playground. S.C. Code Ann. Sec. 61-6-120 (Supp. 2004). Here, the 500 foot rule is not violated.

 


The nearest church is Liberty Spring Presbyterian Church at a distance of six-tenths of a mile from the proposed location. In addition, St. John Baptist Church is at a distance of approximately 4 miles from the proposed location. Thus, no church is within the "no license zone" of 500 feet.

 

2. Suitable Location

 

A second criteria for judging the appropriateness of the location of a retail liquor store is whether the location is a suitable location. S.C. Code Ann. Sec. 61-6-910(2) (Supp. 2004). The suitable location issue is a highly factual determination.

 

In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). In fact, in making this determination, geography alone is not the sole suitability consideration, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

 

While not all inclusive, numerous location factors are considered. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). The impact of the proposed location upon traffic in the area can be a consideration. Palmer, supra. Further, objections to the permit must be based upon adequate factual support. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

 

Here, no evidence exists of any significant criminal activity at the location nor of any traffic concerns. Rather, the theft at St. John Baptist Church (a church 4 miles away from the proposed location) has no evidentiary link to the proposed location. Likewise, no evidence suggests that loitering will be a concern at the location since the inherent characteristic of a retail liquor license is that customers leave the premises after concluding their purchases. Additionally, no evidence establishes that loitering on the grounds of St. John Baptist Church will result from a location 4 miles away.

 

The basic objection from St. John Baptist Church is based on moral grounds. Certainly, one must respect the moral grounds of an individual to abstain from the purchase and consumption of alcohol and the right not to be disturbed by those who do chose to buy and drink beer, wine, or liquor. Corwin v. Board of Liquor Control, 164 N.E.2d 412 (Ohio 1960) ("We would not imply that an objection to the issuance of a permit on moral grounds should be ignored by the director in determining the advisability of issuing the permit. The opposition of many religious denominations to the sale and use of intoxicants is a commendable one that should not be lightly regarded."). However, the suitability of a proposed location for the sale of alcoholic beverages cannot be found wanting based only on the religious convictions of opponents to an application. Rather, in South Carolina, the sale of alcoholic beverages is a lawful enterprise which is regulated by the State.

 

Accordingly, based on the evidence and the law applicable to this case, the license must be granted.

 

 


IV. Order

 

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

 

DOR shall grant Isaiah N. Foggie's application for a retail liquor license at B12894 Hwy 72 West, Cross Hill, South Carolina.

 

AND IT IS SO ORDERED.

 

_________________________________

RAY N. STEVENS

Administrative Law Judge

 

Dated: July 20, 2005

Greenville, South Carolina


Brown Bldg.

 

 

 

 

 

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