SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter is before the Administrative Law Court (“ALC” or “Court”) for a contested case hearing on an application for a retail liquor license pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2005) and S.C. Code Ann. §§ 1-23-310 et seq. (2005). The petitioner, Rebecca S. Blackwood (“Blackwood”), seeks a retail liquor license for the location at 3721-A York Street in the town of Sharon, South Carolina, an incorporated municipality in York County. Respondent South Carolina Department of Revenue (“Department”) found that Blackwood met the statutory requirements for the issuance of a retail liquor store license, but denied her application pursuant to S.C. Code Ann. § 61-6-185 (Supp. 2005) because it received several valid public protests.

After timely notice to the parties and the Protestants, the court held a hearing in this matter on July 25, 2006, at the offices of the ALC in Columbia, South Carolina. Both parties and several Protestants appeared at the hearing. Evidence was introduced and testimony presented. After carefully weighing all the evidence, the court finds that the application for a retail liquor license for this location should be granted.

FINDINGS OF FACT

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, and taking into consideration the burden of persuasion by the parties, the court makes 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 timely given to all parties and Protestants.

2.                  Blackwood seeks a retail liquor license for the location at 3721-A York Street, Sharon, South Carolina 29742, inside the town limits.

3.                  Notice of the application was lawfully posted at the location and published in two newspapers of general circulation.

4.                  Blackwood is the sole proprietor of the business for which she seeks a retail liquor license.

5.                  Blackwood is over the age of twenty-one. She is a legal resident of the State of South Carolina and has maintained her principle place of abode in South Carolina for at least thirty days prior to the date of the application. She is of good repute and has never had revoked a license regulating the manufacture or sale of alcoholic liquors. She has no criminal record. The court found her to be earnest, sincere, and respectful of the community of Sharon.

6.                  The proposed hours of operation of the business are 9:00 a.m. to 7:00 p.m. Monday through Saturday.

7.                  The proposed location is on York Street (Highway 49) in a business district of Sharon. Several other businesses operate near the proposed location. Additionally, two convenience stores are currently licensed to sell beer and wine in the Town of Sharon. A retail liquor store currently operates approximately six miles from the town.

8.                  The proposed location is not within 300 feet of any church, school, or playground.

9.                  Blackwood owns the property on which the proposed location is situated.

10.              Currently, there are a total of 18-20 parking places located in either the front or the rear of the building. These are public parking spaces serving the building which houses several businesses, including, among other things, the proposed retail liquor store and a barber shop. Two entrances access the parking lot from Green Street, a side street which intersects Highway 49.

11.              Highway 49 is a busy thoroughfare connecting several communities in York County. The speed limit on Highway 49 in Sharon is 35 miles per hour. However, the road curves at the proposed location. The speed limit at the curve is 15 miles per hour.

12.              There is a sign prohibiting loitering posted outside the proposed location. Additionally, Blackwood testified that she would not permit loitering outside the proposed store.

13.              Protestants Mary Bankhead, Susan Cavin, Miriam Chambers, Roberta Howell, Gail Werner, and Alan Werner appeared at the hearing in opposition to Blackwood’s application.[1] Protestants Cavin, Chambers, and Alan Werner presented testimony. The remaining Protestants represented that the testimony of those three witnesses encompassed all of their objections to the application and the court found that additional testimony from these Protestants would be cumulative.

14.              The Protestants objected to having a liquor store in the town of Sharon, expressing concerns about its impact on the social atmosphere and the youth of the town. They also expressed concerns about crimes they viewed to be generally associated with alcohol including violence, drunk driving, underage drinking, vandalism, loitering, and littering. They raised questions as to the adequacy of police protection to address the increase in crime which they feared would result from the proposed liquor store. Additionally, they raised issues relating to parking and traffic.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, the court concludes 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. 2005), S.C. Code Ann. § 1-23-600(B) (Supp. 2005), 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. 2005) 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. 2005).

4. In addition, S.C. Code Ann. § 61-6-910(2) (Supp. 2005) 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.”

5. 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).

6. 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).

7. 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).

8. However, without sufficient evidence of an adverse impact on the community, a license application must not be denied if the statutory criteria are satisfied. 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).

9. 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).

10. The court finds that the applicant has complied with all of the statutory requirements to obtain a retail liquor license contained in S.C. Code Ann. §§ 61-6-100 et seq.

11. The court finds that the location is suitable for the issuance of a retail liquor license. Although there are residences nearby, the proposed liquor store is to be located amongst other commercial businesses in Sharon. Moreover, there are businesses already licensed to sell beer and wine in the town. No churches, schools, or playgrounds are within 300 feet of the proposed location. See S.C. Code Ann. § 61-6-120.

12. The court finds that parking at the location is adequate. Additionally, the two entrances should help ease traffic flow. No evidence was introduced to show that a liquor store would affect traffic any more adversely than another type of business at the proposed location, where several commercial businesses already exist. Additionally, the court notes that the license applied for does not permit on-premises consumption of alcohol, so issues of intoxicated drivers entering Highway 49 at the curve should not arise.

13. The court is mindful of the Protestants’ concerns about the impact of retail liquor sales on the youth of their town. However, Blackwood testified that she did not plan to sell liquor to underage persons, that she was aware of the penalties for violating the law in that regard, and that her policy at the liquor store would be to require identification from every patron, regardless of age or appearance.

14. Although the Protestants raised concerns about police protection, evidence was presented that a sheriff’s department substation is located near the proposed location and that, while they are not always present at the substation, two deputies of the York County Sheriff’s Department are assigned to Sharon. Further, Blackwood testified that on occasion a police car is parked in the parking lot which would be shared by the proposed liquor store, thus enhancing security in the area.

15. Additionally, one of the Protestants testified that citizens of Sharon currently travel to nearby towns to purchase liquor. No evidence was introduced that the existence of a retail liquor store a few miles closer to those residents would result in increased crime in the town of Sharon. Moreover, by statute, a liquor store may not be open for business 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(A)(1)(a)-(b), (A)(2); § 61-6-4160 (Supp. 2005). Accordingly, the operation of Blackwood’s store will largely resemble that of any other retail business and will not likely create the sort of problems often associated with establishments licensed for the sale of alcohol for consumption on the premises, or even establishments permitted to sell alcohol for off-premises consumption late into the evening.

16. The court further finds that many of the Protestants’ concerns regarding crime relate to their opinions as to the dangers of alcohol generally and not to any specific problems with the proposed location. The concerns they expressed are not unique to the town of Sharon or to the proposed location. The law of South Carolina permits the retail sale of alcoholic beverages when certain statutory criteria are met, as they are here. While the court is sensitive to the Protestants’ concerns regarding the sale of liquor in their town, these concerns, although sincere, are too general and too speculative to warrant the denial of Petitioner’s application for a license for which it is otherwise qualified under the law.

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 3721-A York Street in the town of Sharon, South Carolina.

AND IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

July 28, 2006

Columbia, South Carolina