SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 1999), § 61-6-910 (Supp. 1999), and §§ 1-23-310 et seq. (Supp. 1999) for a contested case hearing. The Petitioner, Robert W. Harbiston, seeks a retail liquor license. The Department of Revenue (Department) made a Motion to be Excused stating that but for the protests it received, the license would have been granted. This motion was granted by my Order dated June 12, 2000. Respondent Hal Armstrong, who was originally the protestant in this matter, made a Motion to Intervene through his attorney. This Motion was granted by my Order dated July 3, 2000. A hearing was held on this matter on July 20, 2000, at the Administrative Law Judge Division.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and the Respondents, 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 the Petitioner and the Respondents.

2. The Petitioner, Robert W. Harbiston, is seeking a retail liquor license for B & L Liquors. The location which the Petitioner seeks a license for is at 10150 Dorchester Road, Summerville, South Carolina.

3. The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 1999) concerning the age, residency, and reputation of the Petitioner and/or licensee are properly established. Furthermore, the Petitioner has not had a license for the sale of alcoholic liquors revoked within the last five years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The licensee has no criminal record and is of sufficient moral character to receive a retail liquor license.

5. There was no evidence that the proposed location is within five hundred feet or unreasonably close to any church, school, or playground.

6. No other member of Petitioner's household has been issued a retail liquor store license. Additionally, the Petitioner has not been issued more than three retail liquor licenses, nor does he have an interest, financial or otherwise, in more than three retail liquor stores.

7. The proposed retail liquor store is located in a commercially zoned area of Summerville in Oakbrook Square, a shopping center, on Dorchester Road. There is one retail liquor store in the general vicinity of the proposed location.

8. The Respondent, Hal Armstrong, who owns the competing retail liquor store in the area, argues that a retail liquor license should not be issued for the Petitioner's store because there is only enough business in the area for one profitable retail liquor store. Mr. Armstrong contends that the issuance of a retail liquor store license to the Petitioner would economically harm his business. However, the Respondent's evidence did not support this proposition. Furthermore, I find that the evidence did not sufficiently establish that there are too many retail liquor stores in the vicinity to safeguard the public health, safety, and welfare of the citizens who live in the area. Therefore, I find the proposed location to be suitable for a retail liquor store license.

Based upon the above Findings of Fact, I conclude the following as a matter of law:

1. S.C. Code Ann. § 1-23-600 (Supp. 1999) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1999) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. § § 61-6-110, et seq. (Supp. 1999) sets forth the general requirements for determining eligibility for a retail liquor license.

4. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. V. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). Furthermore, the determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations 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). Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. In other words, the fact that the Respondent objects to the issuance of a license 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).

5. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a permit is based upon opinions, generalities and conclusions, or whether the case is supported by the facts. 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).

6. The Respondent's sole objection to the proposed location is that the issuance of a retail liquor store license to the Petitioner would economically harm his business. S.C. Code Ann. § 61-6-170 (Supp. 1999) provides that "[t]he 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 the stores within the subdivision, or (3) other reasons." The primary rule of statutory construction is to ascertain and effectuate the intent of the legislature. Plyler v. Evatt, 313 S.C. 405, 438 S.E. 2d 244 (1993). The intent of the General Assembly in enacting Section 61-6-170 was not to ensure economic viability of businesses already licensed in the area, but to safeguard the public health, safety, and welfare of the citizens who live in the area. See Alok Pandey, Pandey, Inc., d/b/a Party Pop Shop/One Stop Liquor v. South Carolina Department of Revenue, and Vestal McCarty, Docket No. 95-ALJ-17-0527-CC. In this case, aside from establishing that a retail liquor store exists one and a half miles away (belonging to Respondent Armstrong), the Respondent did not establish that the public health, safety or welfare is endangered by the issuance of this license in this case because of a plethora of retail liquor stores. Therefore, since the proposed location is not unsuitable pursuant to Section 61-6-170 and the Petitioner meets the statutory requirements for holding a retail liquor license, the Respondent's license should be granted.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the retail liquor license of Petitioner Robert W. Harbiston and B & L Liquors be granted upon the Petitioner's payment of the required fees and costs.

AND IT IS SO ORDERED.

Ralph King Anderson, III

Administrative Law Judge

August 31, 2000

Columbia, South Carolina