ORDERS:
FINAL ORDER
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2004) upon the filing of an application by Petitioner The Booze Barn, LLC, d/b/a Booze Barn ("Petitioner"), for a retail liquor license for a location at 2250A Sunset Boulevard, West Columbia, South Carolina. Upon receipt of written protest to the application, the South Carolina Department of Revenue ("Department") transmitted the case to the Administrative Law Court ("ALC") for a hearing. After timely notice to the parties and the Protestant, a contested case hearing was held on September 20, 2005, at the offices of the ALC in Columbia, South Carolina. Upon review of the relevant and probative evidence and applicable law, the application for a retail liquor license is granted upon passing an inspection performed by the South Carolina Law Enforcement Division ("SLED") of the finished facility to satisfy the requirements of the law.
FINDINGS OF FACT
Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of the evidence:
1. Notice of the time, date, place, and subject matter of the hearing was given to all parties and to the Protestant in a timely manner.
2. Petitioner seeks a retail liquor license for the subject location of 2250A Sunset Boulevard, West Columbia, South Carolina.
3. The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2004) concerning the age, residency, and reputation of the Petitioner are properly established. Furthermore, the Petitioner has not had a license for the sale of alcoholic liquors revoked within the last five years, and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.
4. The Petitioner is of sufficient moral character to receive a retail liquor license.
5. No other member of Petitioner's household has been issued a retail liquor store license. Additionally, the Petitioner has not been issued more than three retail liquor licenses, nor does he have an interest, financial or otherwise, in more than three retail liquor stores.
6. A SLED investigation of the Petitioner's establishment to determine whether it complied with the applicable laws revealed that a final SLED inspection would be needed to determine whether the establishment complies with the applicable laws.
7. The proposed retail liquor store is located in a strip mall in a rapidly growing commercial area. Thomas F. Meetze, Petitioner’s sole member and manager, testified that he selected the proposed location based on the rapid growth of the area and based on the fact that the closest liquor store to the proposed location is approximately two miles away. The owner of the nearest liquor store is Mr. Sonny Narang, who is the sole Protestant in this case.
8. Protestant Sonny Narang testified that he objects to the Petitioner's application primarily because there are approximately twenty one liquor stores within a five mile radius of the proposed location already serving the market. Mr. Narang testified that the market is adequately served by the existing locations, that the market is saturated, and that another location is not necessary.
9. Mr. Narang also testified that the proposed location’s parking lot is within one hundred fifty (150) feet of Northside Middle School, and the location itself is approximately two hundred (200) feet from the school. Mr. Narang testified that he measured the distance from the parking lot to the school using a path through a wooded area located between the shopping center and the school.
10. The SLED map in the record indicates the distance from the proposed location to Northside Middle School, as measured pursuant to S.C. Code Ann. § 61-6-120 (Supp. 2004), is four tenths (4/10) of a mile. This distance does not violate the requirements set forth in S.C. Code Ann. § 61-6-120 (Supp. 2004).
11. Mr. Meetze testified that Protestant Narang owns a competing liquor store approximately two miles from the proposed location. Protestant clarified that he indeed does own a liquor store approximately two miles away. Protestant testified that he also owns two other liquor stores in the area. These stores operate under the names of The Grog Shoppe, The Grog Shoppe #2, and The Grog Shoppe #3.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law, the following:
1. S.C. Code Ann. § 1-23-600 (Supp. 2004) grants jurisdiction to the ALC to hear contested cases under the Administrative Procedures Act ("APA"). Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the ALC the responsibilities to determine contested matters governing alcoholic beverages, beer, and wine.
2. S.C. Code Ann. § 61-6-110 et seq. (Supp. 2004) sets forth the requirements for determining eligibility for a retail liquor license.
3. Licenses issued by the State for the sale of beer, wine, and liquor are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
4. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a license is not a sufficient reason by itself to deny the application. See 45 Am.Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).
5. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a retail liquor license using broad but not unbridled discretion. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.
Two Step Analysis
6. A two step analysis is needed for reviewing a retail liquor license: a distance measurement and a proximity factor.
Under the distance measurement, a "no license zone" may exist for schools, playgrounds, and churches within 300 feet (if in a municipal area) and 500 feet (if in a non-municipal area) of a proposed location. See S.C. Code Ann § 61-6-120 (Supp. 2004) ("[DOR] shall not grant or issue any license provided for in this article or Article 7 of this chapter, if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality.").
However, in addition to the distance measurement, case law establishes a second proximity test for a liquor license which applies even if the proposed location is permissible under S.C. Code Ann § 61-6-120 (Supp. 2004). The second test asks whether the proposed location is suitable under a fact-based case by case analysis. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if specific statutory distance criteria are satisfied, a liquor license is properly granted only if the location is a proper location).
The first issue is whether the proposed location is within the distance measurements of S.C. Code Ann § 61-6-120) (Supp. 2004). The second issue is whether the facts demonstrate that the proposed location is proper. See S.C. Code Ann. § 61-4-520 (Supp. 2004).
Distance Measurements for Retail Liquor License
7. The starting point for the analysis of the retail liquor license is the distance measurements of S.C. Code Ann. 61-6-120(A). Since the location under review is not within a municipality, the statute initially imposes a separation of 500 feet between the proposed location and churches and schools.
Here, Protestant asserts that the proposed location is within 200 feet of Northside Middle School. However, the SLED map in the record indicates the distance from the proposed location to Northside Middle School, as measured pursuant to S.C. Code Ann. § 61-6-120 (Supp. 2004), is four tenths (4/10) of a mile. This distance does not violate the requirements set forth in S.C. Code Ann. § 61-6-120 (Supp. 2004).
S.C. Code Ann. § 61-6-120 (A) (Supp. 2004) states in part, “Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground…” Protestant admits his measurement was conducted using a path which passes through a private wooded area behind the shopping center. SLED’s measurement was conducted following the shortest route along the public thoroughfare. Thus, the proposed location is not in contravention of the distance requirement set forth in the statute.
Proximity Requirement for Retail Liquor License
8. However, notwithstanding the fact that an applicant meets the statutory distance measurements imposed for retail liquors, the retail liquor applicant must nonetheless demonstrate that the location is a suitable location. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if the specific statutory distance criteria of 500 feet or 300 feet to a church, school, or playground are satisfied, a retail liquor license is properly granted only if the location is a suitable location). Therefore, a retail liquor license may not be granted unless the location of the place of business is a proper location. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
9. Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a location is not necessarily a function solely of geography. 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 v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself upon which the location may be found to be unsuitable and a license denied. Byers v. S. C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
10. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities and conclusions, or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
11. The crux of the Protestant’s objection is that this retail liquor license should be denied because there are already approximately twenty one liquor stores in the area of the proposed location, and because a new liquor store in this area will affect the economic viability of the existing stores. S.C. Code Ann. § 61- 6-170 (Supp. 2004) provides that "[t]he department may, in its discretion, limit the further issuance of retail dealer licenses in a political subdivision if it determines that the citizens who desire to purchase alcoholic liquors therein are more than adequately served because of (1) the number of existing retail stores, (2) the location of the stores within the subdivision, or (3) other reasons."
The primary rule of statutory construction is to ascertain and effectuate the intent of the legislature. Plyler v. Evatt, 313 S.C. 405, 438 S.E. 2d 244 (1993). The intent of the General Assembly in enacting S.C. Code Ann. § 61-6-170 (Supp. 2004) was not to ensure economic viability of businesses already licensed in the area, but to safeguard the public health, safety, and welfare of the citizens who live in the area. See Monarch Enters., Inc., d/b/a Monarch Liquors v. S.C. Dep't of Revenue, Docket No. 01-ALJ-17-0520-CC (ALC, February 22, 2002). In this case, the evidence did not establish that the public safety, health or welfare will be endangered by the issuance of a license in this case because of a plethora of retail liquor stores. Therefore, the proposed location is not unsuitable pursuant to S.C. Code Ann. § 61-6- 170 (Supp. 2004).
12. Considering all relevant factors, I find that the proposed location is suitable for a retail liquor license. I further find that the application for a retail liquor license should be granted, but only upon the Petitioner first passing an inspection by SLED of the finished facility to satisfy the requirements of the law.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner's application for a retail liquor license for the location at 2250A Sunset Boulevard, West Columbia, South Carolina, is granted upon passing an inspection performed by SLED of the finished facility to satisfy the requirements of the law.
AND IT IS SO ORDERED.
__________________________________
JOHN D. MCLEOD
Administrative Law Judge
September 20, 2005
Columbia, South Carolina |
