ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) for a contested case hearing. Sun Cha
Van Rees, the sole owner of Petitioner Decker Moonshine Store, Inc., seeks a retail liquor license
for a liquor store located at 2212 Decker Boulevard, Columbia, South Carolina. The South Carolina
Department of Revenue (Department) would have granted the license but for the protest of Robert
Sherr regarding the suitability of the proposed location for the requested license in light of the number
of existing licensed liquor stores in the area. Accordingly, the Department was excused from the
hearing of this matter. After notice to the parties and the protestant, a hearing of this matter was held
on July 11, 2003, at the Administrative Law Judge Division (ALJD) in Columbia, South Carolina.
The day before the hearing, with the consent of the Petitioner, Robert Sherr was granted leave to
intervene in this matter in opposition to the Petitioner’s application. Based upon the evidence
presented regarding the suitability of the proposed location and the applicant 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.Ms. Van Rees submitted an application for a retail liquor license to the Department
in April 2003 for the premises located at 2212 Decker Boulevard, Columbia, South Carolina. The
application was made in the name of Decker Moonshine Store, Inc., a corporation of which Ms. Van
Rees is the sole owner. This application is incorporated into the record by reference.
2.The proposed location is situated within an unincorporated area of Richland County
known as Dentsville. This area, and Decker Boulevard in particular, is commercial in nature, but has
recently experienced economic decline marked by the relocation of several major retailers and
restaurants to other areas in the county. The proposed location has been licensed as a liquor store
for over ten years under various proprietorships. In fact, Intervenor Robert Sherr operated a liquor
store at the location between 1991 and 1997, when he relocated his store to a shopping center
approximately one-tenth of a mile away at 2230-B Decker Boulevard. Subsequently, Chong S. Price
was granted a license to operate a retail liquor store at the proposed location in April 1998,
although
evidence in the record indicates that Price chose not to open a store at the location. The location was
next licensed for the sale of liquor by Ralph H. Stevenson in 2001.
Mr. Stevenson’s business was
subsequently assumed by Clarence Joseph, who applied for and was granted a retail liquor license at
the location in March 2003.
The Orders of the Administrative Law Judge Division issuing each of
these three prior licenses were introduced into evidence at the hearing of this matter.
3.Ms. Van Rees is over twenty-one years of age, is a citizen of the United States, and
has resided and maintained her principal place of abode in South Carolina for at least thirty days prior
to making her application for a retail liquor license.
4.Ms. Van Rees is a person of good moral character and is of good repute. The South
Carolina Law Enforcement Division (SLED) completed a criminal background investigation of Ms.
Van Rees that revealed no criminal violations, and the record does not indicate that Ms. Van Rees
has engaged in acts or conduct implying the absence of good moral character.
Testimony at the hearing revealed that Ray Van Rees is President of the corporation Decker
Moonshine Store, Inc., and has some involvement in the business; therefore, a criminal background
check on Mr. Van Rees will be necessary. Mr. Sherr, in his testimony, referred to both Ms. Van Rees
and Mr. Van Rees as “fine people.”
5.Ms. Van Rees has not had a permit to sell beer and wine or a license to sell alcoholic
liquors revoked within the five years preceding the filing of her application.
6.No other member of Ms. Van Rees’s household has been issued a retail liquor license.
Further, Ms. Van Rees has not been issued more than three liquor licenses, nor does she, her relatives,
or any partnership, association, or corporation in which she is involved have an interest, financial or
otherwise, in more than three retail liquor stores.
7.Notice of Petitioner’s application was published in The Columbia Star, a newspaper
published and circulated in Richland County, South Carolina, for three consecutive weeks and proper
notice of the application was posted at the proposed location for fifteen days.
The Intervenor’s attorney raised an issue as to whether or not the Petitioner’s address was
properly advertised and, therefore, whether or not the notice was adequate. The advertised address
was 2212 Decker Boulevard, Columbia, South Carolina, 29223, when in fact the proper ZIP code
for the location is 29206. There was no evidence offered that there is another 2212 Decker
Boulevard in ZIP code 29223. Further, there was no evidence that the Intervenor was misled by the
discrepancy in the ZIP code.
8.The proposed location is not located within 500 feet of any school or playground, and
there is only one residence in the immediate vicinity of the location. The Living Waters Christian
Outreach Center is on the same block as the proposed location, and, by Intervenor’s measurement,
is 491 feet from the proposed location. SLED’s investigation of the proposed location did not
indicate that the location was within 500 feet of the outreach center.
9.Intervenor opposes the instant application on three principal grounds: (1) that the
proposed location is unsuitable for licensure because the surrounding area is over-saturated with
liquor stores and the residents of the area are more than adequately served by existing retail liquor
outlets; (2) that there has been a decline in business for retail liquor stores in the area; and (3) that
there has been an increase in crime in the area.
10.On the first issue, Intervenor Sherr testified that he considered the relevant service
area to include one-half of the residences of the 29206 ZIP code and one-third of the residences of
the 29223 ZIP code; he testified that this area would include about 20,000 residences. He testified
that, within this area, there are fourteen liquor stores, including his own store and the proposed
location. Intervenor further testified that, based upon industry literature, the standard assumption is
that it requires 20,000 individuals to support one liquor store.
11.While there are several liquor stores in the largely commercial Dentsville area, there
are currently only two liquor stores on Decker Boulevard: the store operated by Intervenor and the
store operated by Petitioner. The grant of a retail liquor license to Petitioner would simply continue
the retail sale of liquor at a store that has been licensed for such sales for over a decade and that has
coexisted with Intervenor’s store since at least 2001.
12.On the second issue, the Intervenor testified that he believes there has been a decrease
in business. As noted above, the area of Dentsville has experienced a decline in its economy due to
the relocation of several major retailers and restaurants. However, this location has been licensed as
a liquor store for over ten years.
13.On the third issue, the Intervenor testified as to his opinion that there has been an
increase in crime in the area. However, he did not present statistics to demonstrate any such increase,
nor did he call anyone from the Sheriff’s Office to testify at the hearing regarding crime in the area.
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 Administrative Law Judge Division
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2002).
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 through 61-6-190 (Supp. 2002) establish the criteria for
determining eligibility for a retail liquor license, and S.C. Code Ann. § 61-6-910 (Supp. 2002) sets
forth additional grounds for the denial of an application for a liquor license. Further, S.C. Code Ann.
§ 61-2-100 (Supp. 2002) lays out the general requirements that all applicants for permits and licenses
to sell alcoholic beverages must satisfy.
Notice
4.The Intervenor contends that the notice was inadequate in this case because it
contained the incorrect ZIP code. The Department argues that the error in the ZIP code does not
affect the adequacy of the notice because it is the street address, not the mailing address, that is at
issue. The street address was accurate in the published and posted notice.
“As a general rule, a party must establish prejudice as the result of another’s failure to follow
mandatory statutory procedure.” Gardner v. S.C. Dep’t of Revenue, 353 S.C. 1, 14, 577 S.E.2d 190,
197 (2003) (citing Rose v. Beasley, 327 S.C. 197, 489 S.E.2d 625 (1997) and Porter v. S.C. Pub.
Serv. Comm’n, 338 S.C. 164, 525 S.E.2d 866 (2000)). “Where a party receives inadequate notice,
he must demonstrate prejudice resulting from the insufficient notice.” Id. (citing Ballenger v. S.C.
Dep’t of Health and Envtl. Control, 331 S.C. 247, 500 S.E.2d 183 (Ct. App. 1998) and Long v. Bd.
of Governors of the Fed. Reserve Sys., 117 F.3d 1145 (10th Cir. 1997)). I need not address the issue
of whether or not the error in the ZIP code rendered the notice inadequate because I find that, even
if it was inadequate, the Intervenor failed to establish that he was prejudiced by the error.
Suitability of Applicant
5.The alcoholic beverage licensing statutes contain several provisions regarding the
suitability of an applicant to hold a retail liquor license. Section 61-6-110(3) requires that an
applicant for a retail liquor license be “of good repute,” and section 61-2-100(D) requires that an
applicant and all principals be “of good moral character.” Further, section 61-6-910(1) requires the
refusal of a liquor license to an applicant who “is not a suitable person to be so licensed.”
6.In the case at hand, all testimony and other evidence leads to the conclusion that Ms.
Van Rees is of sufficient good repute and good moral character such that she is a suitable person to
hold a retail liquor license.
The evidence regarding Mr. Van Rees leads to the conclusion that he is an officer in the
corporation. The testimony of the Intervenor was that Mr. Van Rees is a “fine person.” Because a
criminal record check was not previously performed on Mr. Van Rees, however, a criminal record
check will be necessary in order for the Petitioner’s application to be approved.
Suitability of Location
7.The liquor licensing statues also contain several provisions regarding the suitability
of a proposed location for a retail liquor license. Section 61-6-120(A) provides that a license cannot
be issued for a liquor store outside of a municipality, if the store is within 500 feet of any church,
school, or playground. However, this Section further provides that the minimum distance
requirements “do not apply to new applications for locations which are licensed at the time the new
application is filed with the department.” S.C. Code Ann. § 61-6-120(A) (Supp. 2002). Such is the
case here, as Petitioner filed its license application with the Department while the store was still
licensed to Mr. Joseph. Accordingly, even if the distance between the Living Waters Christian
Outreach Center and the proposed location is less than 500 feet, the location is not precluded from
licensure on that ground.
8.Sections 61-6-170 and 61-6-910(3) grant the licensing authority discretion to limit the
number of retail liquor licenses issued to locations in a given area. Section 61-6-170 provides that:
The 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 stores within the subdivision, or
(3) other reasons.
S.C. Code Ann. § 61-6-170 (Supp. 2002). Similarly, Section 61-6-910 states that “[t]he department
must refuse to issue any license . . . if the department is of the opinion that . . . a sufficient number
of licenses have already been issued in the State, incorporated municipality, unincorporated
community, or other community.” S.C. Code Ann. § 61-6-910(3) (Supp. 2002). Based upon these
statutes, Intervenor contends that Petitioner’s application should be denied because of the
oversaturation of retail liquor stores in the Dentsville area. However, the thrust of these provisions
is clearly not to ensure the economic viability of existing licensed retailers, but to safeguard the public
health, safety, and welfare of communities in which retail liquor licenses are sought. See Pandy v.
S.C. Dep’t of Revenue & Taxation, Docket No. 95-ALJ-17-0527-CC (S.C. Admin. Law Judge Div.
Sept. 26, 1995). In the instant case, Intervenor’s oversaturation argument and the evidence presented
to support that argument focus on the economic viability of Petitioner’s store and its impact upon the
economic viability of existing retailers, and not upon the public safety, health, or welfare of the
residents of the Dentsville community. And, there is no evidence in the record establishing that the
public safety, health, or welfare of those residents has been or will be adversely affected by the
operation of Petitioner’s store. Furthermore, approval of the Petitioner’s application does not
introduce a new location into the area, as this is an existing location which has been licensed for over
ten years.
9.In addition to the provisions cited above, Section 61-6-910 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.” S.C. Code Ann. § 61-6-910(2) (Supp. 2002).
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).
10.This 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).
11.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).
12.Here, Petitioner meets all of the statutory criteria enacted by the South Carolina
General Assembly for the issuance of a retail liquor license, subject to a criminal record check on Mr.
Van Rees, and there has not been a sufficient evidentiary showing that the proposed location is
unsuitable for Petitioner’s business or that the issuance of the license would create problems in or
have an adverse impact upon the surrounding community. This location has been licensed for the
retail sale of liquor for over ten years, and during that time, the businesses operating at the location
have successfully coexisted with the surrounding community and existing liquor retailers. Therefore,
I find the proposed location suitable for the issuance of a retail liquor license.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Petitioner’s application for a retail liquor license for
the premises located at 2212 Decker Boulevard, Columbia, South Carolina, is granted, subject to a
criminal record check being run on Mr. Van Rees.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
Administrative Law Judge
July 14, 2003
Columbia, South Carolina |
