ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court
(ALC or Court) pursuant to S.C. Code Ann. § 61-6-185 (Supp. 2004) and §§
1-23-310 et seq. (2005) for a contested case hearing.
Petitioner A & U, d/b/a First Choice Liquor Store, seeks a retail liquor
license for its location at 1301B New Cut Road, Spartanburg, South Carolina. A
hearing was held on this matter on January 5, 2006, at the offices of the ALC
in Columbia, South Carolina.
FINDINGS
OF FACT
Having
observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion of Petitioner,
the Department of Revenue (Department), and the Protestant, 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
Petitioner, the Department and the Protestant.
2. Abraham
Thomas, the applicant for Petitioner, is seeking a retail liquor license for First
Choice Liquor Store at 1301B New Cut Road, Spartanburg County, South Carolina. Mr.
Thomas has lived in Spartanburg County since 1989 and
currently owns and runs a convenience store with a beer and wine permit
adjacent to the proposed location. Mr. Thomas has held a beer and wine permit
at the convenience store since 1993. He works at the convenience store almost
all hours it is in business and will also be on-premises to oversee daily
operations of the liquor store.
Mr. Thomas previously obtained a retail liquor
license for this location in 2001 without protest but did not open a store
because of employee problems and "September 11" issues. However,
this exact location was operated as a licensed retail liquor store from 2003 to
May 2005 under the name J&B Liquor Store.
3. The site of Mr. Thomas' businesses
in on a land-locked pie-shaped piece of property near the intersection of
Interstates 26 and 85, a somewhat newly created "cut through." An
older residential neighborhood is located behind the store. However, this is a
predominantly fast-growing industrial commercial area. Industries such as Lockwood
Greene, Michelin Americas Truck Tires, Goodyear Tire and Rubber Company, and
Spartanburg Steel Products are situated within a 40-to-50 acre commercialized
area nearby. Additionally, at least three liquor stores are located within a
two mile radius of this proposed site.
4. Because of the location's close
proximity to this growing industrial area, Mr. Thomas'
current customer base at the convenience store consists of
approximately 90-95% commuter workers from those industries. Furthermore, he
has primarily "drive-up" customers with only the occasional drifter because
of the heavy interstate traffic in the area. Also, as set forth above, Mr. Thomas
will be at the location frequently. He enjoys a good relationship with local
law enforcement, who cruise the parking lot of this location several times a
day. He has in the past called upon local law enforcement to remove loiterers
from the parking lot area but this has occurred infrequently. Finally, the
outside of the location is well-lit with a camera surveillance system where Mr.
Thomas can observe activity outside the location.
5. The qualifications set forth
in S.C. Code Ann. § 61-6-110 (Supp. 2004) concerning the age, residency, and
reputation of Mr. Thomas are properly established. Furthermore, the licensee
has not had a license for the sale of alcoholic liquors revoked within the last
five years. Also, the licensee has no criminal record and is of sufficient
moral character to receive a retail liquor license.
6. Although
Mr. Thomas previously held a retail liquor license for another location from
1989 to 1993, he does not currently own an interest, financial or otherwise, in
more than three retail liquor stores. See S.C. Code Ann. § 61-6-140
(Supp. 2005).
7. Pursuant
to S.C. Code Ann. § 61-6-180 (Supp. 2004), notice of the application was
published in a newspaper of general circulation and was lawfully posted at the
location.
8. In
accordance with S.C. Code Ann. § 61-6-120 (Supp. 2004), there was no evidence
presented that the proposed location is within three hundred feet or
unreasonably close to a school or playground.
9. The Protestant, Reverend H.L. Shipman, is the pastor of Maranatha
Church of God, located in close proximity to the proposed location. Although
he has frequented Mr. Thomas' convenience store, which is permitted for the
sale of beer and wine, he feels more strongly about the sale of liquor. He
mainly testified that he is against the sale of alcohol, especially liquor in a
bottle, and the ill effects to which it can lead. He also argued that this
proposed location will be an eyesore in the community but presented no evidence
to that effect. In fact, Mr. Thomas has owned this building and has been in
operation as a convenience store permitted for the sale of beer and wine
without complaint from the community.
All in all, Reverend Shipman's arguments
appear to be based on a sincere concern for the surrounding community.
However, the declining residential aspect and rapidly growing industrialization
of this area, along with the manner in which Mr. Thomas operates his business,
support the issuance of a retail liquor license for this location. On the
other hand, should the area decline and Mr. Thomas not be able to control this
location, the proposed location would no longer be suitable and the community
and/or the Department could properly bring an action to prohibit the renewal of
Petitioner’s license.
10. I, therefore, find
the proposed location to be suitable for a retail liquor store license.
CONCLUSIONS OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C.
Code Ann. § 1-23-600 (2005) grants jurisdiction to the Administrative Law Court
to hear contested cases under the Administrative Procedures Act. 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 general
requirements for determining eligibility for a retail liquor license.
3. S.C.
Code Ann. § 61-6-140 (Supp. 2004) restricts a licensee from possessing more
than three retail licenses while S.C. Code Ann. § 61-6-150 (Supp. 2004)
ultimately prohibits an individual from having an interest in more than three
retail liquor stores in the state of South Carolina. Mr. Thomas' license and
interest in this retail liquor store does not violate either statute.
4. As
set forth above, no evidence was presented that the proposed location is
within three hundred feet or unreasonably close to a school or playground, in
contravention to S.C. Code Ann. § 61-6-120 (Supp. 2004).
5. Although
"proper location" is not statutorily defined, the Administrative Law
Court is vested, as the trier of fact, with the authority to determine the
fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of
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 upon the community within which it is to be
located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In
determining the suitability of a location, it is proper for this Court to
consider any evidence that demonstrates 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). It is also relevant to consider the
previous history of the location. Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972); Taylor v. Lewis, et al., 261 S.C. 168, 198 S.E.2d 801
(1973). Furthermore, 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, supra; Taylor v. Lewis, supra.
“A
liquor license or permit may also 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). Nevertheless, 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 permit
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).
6 Petitioner
meets the statutory requirements for holding a retail liquor license at the
proposed location.
ORDER
Based upon the
above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that
the retail liquor license of A & U, d/b/a First Choice Liquor Store, be
granted upon Petitioner’s payment of the required fees and costs.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
January 13, 2006
Columbia, South Carolina |