ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
The above-captioned matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005) for a contested case hearing. Petitioner North American Petroleum Stores, LLC, seeks a retail liquor store license for its liquor store, Quick Trip ABC, located at 7A South Guignard Drive in Sumter, South Carolina. Respondent South Carolina Department of Revenue (Department) found that Petitioner met the statutory requirements for the issuance of a retail liquor store license, but denied Petitioner’s application because of a protest filed by the Westside Neighborhood Association regarding the suitability of the proposed location.
After timely notice to the parties and the protestant, a hearing of this case was held on October 26, 2005, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented concerning the suitability of the proposed location and upon the applicable law, I find that Petitioner’s application for a retail liquor license should be granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, 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. On July 28, 2005, Michael John Cox submitted an application on behalf of Petitioner North American Petroleum Stores, LLC, to the Department for a retail liquor store license for its Quick Trip ABC liquor store located at 7A South Guignard Drive in Sumter, South Carolina. This application and the Department’s file on the application are hereby incorporated into the record by reference.
2. Notice of Petitioner’s application was published once a week for three consecutive weeks in The Item, a newspaper published and circulated in Sumter, South Carolina, and proper notice of the application was posted at the proposed location for fifteen days.
3. North American Petroleum Stores, LLC, which Mr. Cox co-owns with Ronald Swinson, Jr., and A. Stanley Harpe, II, is a South Carolina limited liability company, which was originally incorporated as TRI of Sumter, LLC, on March 12, 2004, and which is currently in good standing with the South Carolina Secretary of State. Mr. Cox had incorporated TRI of Sumter, LLC, in 2004 with two other partners in order to own and operate the convenience store and liquor store located at 7 and 7A South Guignard Drive, respectively. TRI of Sumter, LLC, began operating its convenience store with an off-premises beer and wine permit in April 2004, and began operating its nearby liquor store with a retail liquor store license in December 2004. In July 2005, the company was reorganized, with Mr. Swinson and Mr. Harpe replacing Mr. Cox’s prior two partners, and the name was formally changed from TRI of Sumter to North American Petroleum Stores. As a result of the change in ownership, North American Petroleum Stores was required to obtain a new beer and wine permit and a new retail liquor store license for its operations.
4. The principals of Petitioner North American Petroleum Stores, Mr. Cox, Mr. Swinson, and Mr. Harpe, are all over twenty-one years of age, have no delinquent state or federal taxes, and are legal residents of the United States and the State of South Carolina. Further, they reside and maintain their principal places of abode in South Carolina, and did so for at least thirty days prior to making their application for a retail liquor store license.
5. The principals of Petitioner North American Petroleum Stores do not have criminal records and there is no evidence in the record to suggest that they have engaged in acts or conduct implying the absence of good moral character or that either they or their company are not of good repute. Nor does it appear that any of the principals has had a liquor license that he held revoked within the five years prior to the filing of Petitioner’s application for a retail liquor store license.
6. Petitioner’s liquor store is located on South Guignard Drive, a major thoroughfare through downtown Sumter, at the corner of Guignard Drive and West Oakland Avenue. The area surrounding the store is primarily residential with several dozen residences and an apartment complex located within a quarter-mile of the store. In addition, there are three churches and a community center with recreational athletic fields within a block or two of Petitioner’s store. However, when measured following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare, the distances from the entrance of the store to the nearest points of entrance to the grounds of these churches and the community center are all well over three hundred feet. In particular, St. Jude’s Catholic Church on West Oakland Avenue is 522 feet from the store; the Walker Avenue Church of God is 560 feet from the location; and the Brinie Hope Center is approximately 1000 feet from the location to its front entrance and 925 feet from the location to the back gate to its athletic fields. Another church is located approximately 1500 feet away from Petitioner’s store and the nearest school to the store is some 1250 feet away from the location.
7. As noted above, Mr. Cox, through an earlier incarnation of North American Petroleum Stores, LLC, has operated a liquor store at the location in question since December 2004. Other than one robbery, Mr. Cox has not experienced any problems or disturbances during the ten months he has operated a liquor store at the location, nor has he had any problems during the operation of his nearby convenience store with beer and wine sales since April 2004. With regard to the problem of loitering, Mr. Cox testified that he has only rarely found anyone loitering around the store and that he has quickly asked such loiterers to leave the property.
8. Four members of the Westside Neighborhood Association testified at the hearing to express the organization’s opposition to Petitioner’s application for a retail liquor store license. These members were Reverend William S. Randolph, the Sumter City Councilman whose district includes Petitioner’s store; Wilbert L. Bracey, a nearby resident who attends St. Jude’s church; Pastor Marion Newton, pastor of the Jehovah Missionary Baptist Church and a local resident; and Iris McLaughlin, a local resident who lives on Oakland Avenue near St. Jude’s church. These Association members described the Association’s and the city’s efforts to revitalize the Westside community and expressed their concern that the sale of liquor at Petitioner’s store would undermine those efforts and would generally be detrimental to the surrounding Westside community. In addition, the witnesses were concerned with the proximity of Petitioner’s store to nearby churches, including St. Jude’s Catholic Church, and the nearby Brinie Hope Center, an active community center with programs for both adults and children. In particular, Mr. Bracey measured the distance between the store and St. Jude’s church to be 273 feet; however, this measurement was conducted from “driveway to driveway” of the two properties rather than according to the method set forth in the Department’s regulations.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2004), S.C. Code Ann. § 1-23-600(B) (Supp. 2004), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).
2. “[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).
3. S.C. Code Ann. §§ 61-6-110 and 61-6-120 (Supp. 2004) establish the basic criteria for determining eligibility for a retail liquor license. Additional requirements are set forth in S.C. Code Ann. §§ 61-6-130 to 61-6-190 (Supp. 2004).
4. The Department is prohibited from issuing a license to a retail liquor store if the store is located “within three hundred feet of any church, school, or playground situated within a municipality.” S.C. Code Ann. § 61-6-120(A). These distances are measured from the nearest entrance to the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds actually in use as a church, school, or playground or grounds necessary for ingress or egress to such grounds from the public thoroughfare. 23 S.C. Code Ann. Regs. 7-303 (Supp. 2004). However, the prohibition upon the location of a liquor store within a proscribed distance of a church, school, or playground does not apply to “new applications for locations which are licensed at the time the new application is filed with the [D]epartment.” S.C. Code Ann. § 61-6-120(A).
5. In addition, S.C. Code Ann. § 61-6-910(2) (Supp. 2004) provides that an application for a license to sell alcoholic liquors must be denied if “the store or place of business to be occupied by the applicant is not a suitable place.”
6. Although “suitable place” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of a particular location for the requested license. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
7. 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 v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
8. 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 § 121, at 501 (1981).
9. However, without sufficient evidence of an adverse impact on the community, a license application must not be denied if the statutory criteria are satisfied. And, the fact that the issuance of a permit or license is protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 119 (1981).
10. Moreover, the denial of a license or permit 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 v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).
11. In making a decision in this matter, this Court is constrained by the record before it and by the applicable statutes, regulations, and case law. Here, Petitioner North American Petroleum Stores, LLC, and its principals meet all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of a retail liquor store license, and there has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner’s store or that the issuance of the license in question would create problems in or have an adverse impact upon the surrounding community. While Petitioner’s store may be within three hundred feet of nearby churches and the nearby community center as the crow flies, Petitioner’s store is not located within three hundred feet of a church, school, or playground, when the distance between the store and the qualifying institution is measured along the public thoroughfare as required by statute and regulation. See S.C. Code Ann. § 61-6-120(A); 23 S.C. Code Ann. Regs. 7-303; see also Evans v. Thompson, 298 S.C. 160, 378 S.E.2d 618 (Ct. App. 1989) (holding that, under the applicable measurement statute, the distance between a restaurant seeking a liquor license and a nearby playground could not be measured by using a natural shortcut across the restaurant’s parking lot, but must be measured along a public thoroughfare, such as the public sidewalk). More importantly, Section 61-6-120(A) specifically provides that the prohibition upon licensing a liquor store within three hundred feet of a church, school, or playground does not apply in cases such as this where a new license is sought for a location that is already licensed at the time the application is filed.
Beyond such technical matters, it does not appear that the location of Petitioner’s store is otherwise unsuitable for the license it seeks. Although the area surrounding the location is largely residential, the store is located along a major thoroughfare in downtown Sumter and within blocks of other establishments selling alcoholic beverages for off-premises consumption. Moreover, by statute, Petitioner’s liquor store may not be open between the hours of 7:00 p.m. and 9:00 a.m., may not be open on Sunday, and may not allow the consumption of liquor on the premises. See S.C. Code Ann. § 61-6-1500(4), (5) (Supp. 2004). Accordingly, the operation of Petitioner’s store will largely resemble that of any other retail business and will not likely create the sort of problems associated with establishments licensed for the sale of alcohol for consumption on the premises, or even establishments permitted to alcohol for off-premises consumption late into the evening. Thus, given the nature of Petitioner’s business, it is not surprising that none of the witnesses called by the protestant described any particular disturbances or problems attributable to the operations of Petitioner’s liquor store during the ten months it has been open.
Therefore, while this Court recognizes the efforts of the residents of the Westside neighborhood to revitalize their community and is sensitive to their concerns regarding the sale of liquor at Petitioner’s store, these concerns, although sincere, are too general and too speculative to support the denial of Petitioner’s application for a license for which it is otherwise qualified.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall GRANT Petitioner’s application for a retail liquor store license for the premises located at 7A South Guignard Drive in Sumter, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
November 10, 2005
Columbia, South Carolina
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