South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
A & U, Inc., d/b/a First Choice Liquor Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
A & U, Inc., d/b/a First Choice Liquor Store

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0440-CC

APPEARANCES:
For Petitioner: David G. Ingalls, Esquire

For the Department of Revenue: Harry A. Hancock, Esquire

For the Protestants: The Reverend H.L. Shipman, Pro Se
 

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


Brown Bldg.

 

 

 

 

 

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