SC Administrative Law Court Decisions

Petitioner, The Liquor Store, Inc., through its President, Patricia Rein (Rein), filed with the Respondent South Carolina Department of Revenue (DOR), an application for a retail liquor store license for 431 St. James Avenue, Goose Creek, South Carolina. Sunder Sood filed a protest seeking to prevent DOR from granting the license. The filing of such a protest requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. § 61-2-260 (Supp. 1999).

In this matter, not all of the requirements for obtaining a retail liquor license are disputed. No dispute exists on whether Rein exceeded three liquor licenses (§ 61-6-140), is at least twenty-one years old (§§ 61-2-100(B) and 61-6-110), is a legal resident (§ 61-6-110), is of good repute and a suitable person (§§ 61-6-110 and 61-6-910), has had any revocations or suspensions (§§ 61-6-110 and 61-2-140(E)), is delinquent in paying taxes (§ 61-2-160), or failed to provide proper notice (§ 61-6-180). Rather, the dispute concerns whether the location chosen by Rein is proper and whether the citizens in the area who desire to purchase alcoholic beverages are more than adequately served. Having heard the evidence, the license must be granted.

1. Is the proposed location suitable for utilization of a retail liquor license?

2. Are the citizens in the area who desire to purchase alcoholic beverages more than adequately served?

1. Positions of Parties:

Rein asserts that she meets all statutory requirements for obtaining a retail liquor license. DOR states that the filing of a protest prevents the granting of the license until a hearing is held and thus, DOR awaits the outcome of that hearing. The protestant asserts that the proposed location is not proper due to its close proximity to churches, and that citizens desiring to purchase alcoholic beverages are more than adequately served by existing liquor stores in the area, as contemplated by S.C. Code Ann. § 61-6-170 (Supp. 1999). ⁽¹⁾

The protestant maintains that if the license is granted, his own two liquor stores in the area will lose forty percent of their sales.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

On or about February 11, 2000, Rein filed a license application with DOR for a retail liquor store. The application is identified by DOR as AI 32021279-2 and carries a business location of 431 St. James Avenue, Goose Creek, South Carolina. The location's hours of operation will be Monday through Saturday from 9:00 a.m. to 7:00 p.m. and it will be closed on Sunday.

A protest to the application was filed by Sunder Sood of Atlantic Spirits, Inc. Except for the unresolved issues of suitability of location and whether the citizens in the area desiring to purchase alcoholic beverages are more than adequately served, DOR would have issued the license. To resolve the dispute over these issues, a hearing was conducted on August 10, 2000, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

b. Suitability of Location

The location is in a shopping center within the municipal limits of Goose Creek, and therefore has the traffic controls associated with a municipality. The area is adequately served by the four-lane traffic route of St. James Avenue, a/k/a U.S. Highway 176, and presents no significant concern to traffic safety. The immediate area is primarily commercial in nature and presents at least fourteen commercial establishments. One of the business establishments in the immediate area, St. James Bar & Grill, is located fifty feet from the proposed location in the same shopping center, and it is licensed for the sale of alcohol. A grocery store in the same shopping center is two hundred feet from the proposed location and it is licensed for the sale of beer and wine.

Further beyond the immediate area are churches and residences. Approximately six residences are located across the highway from the proposed location, with the closest residence being approximately 570 feet from the location. There is no church, school or playground within sight, hearing, or 500 feet of the location. The nearest church is located approximately four-tenths of a mile from the proposed location, and the nearest school is located approximately 1.8 miles from the proposed location. The nearest school bus stop is located in the Foxborough subdivision across the highway and approximately 600 feet from the proposed location.

There has been no significant crime in the immediate area. The only police reports on file at the Goose Creek Police Department concern shoplifting, mainly from the grocery store and drug store in the shopping center where Rein's liquor store will be located. Further, the shopping center's parking lot has adequate lighting.

c. Whether citizens are adequately served

There are currently three liquor stores serving the entire Goose Creek community. The nearest liquor store, owned by the protestant, is 1.7 miles from the proposed location. The estimated population of the City of Goose Creek for the year 2000 is 29,197, and the increase in population is projected to be approximately 40.3 percent between 1990 and 2015.

The protestant conceded that the population of Goose Creek has been steadily increasing, but he stated that the volume of sales from his stores has remained static. He thus maintains that the increase in population has not generated a corresponding increase in demand for retail liquor. On the other hand, Rein presented evidence of sales growth for her existing licensed liquor store located in the nearby community of Ladson. In 1999, the store experienced a 30 percent growth in liquor sales compared to sales for 1998. From the end of 1999 through the date of the hearing in this matter, liquor sales for this store were up 17 percent over the previous year.

I find that the area citizens desiring to purchase liquor are not "more than adequately served" as contemplated by S.C. Code Ann. § 61-6-170 (Supp. 1999). While the sales of the protestant's two liquor stores may have remained static, there is insufficient evidence in the record showing that the lack of sales growth for his stores is due to a general decrease in liquor purchases by area citizens. Indeed, the lack of sales growth data for the third existing liquor store in the community, combined with evidence of positive sales growth at Rein's existing store in a nearby community, raises doubt as to any correlation between the general demand for liquor and the lack of growth at protestant's stores.

3. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

The only matters disputed are whether the location is proper and whether the area citizens are more than adequately served.

Generally, two criteria dictate the appropriateness of the location of a retail liquor store: establishing the distance to churches, schools, and playgrounds and determining whether the location is suitable.

a. Distance to Church and School

If the proposed location is within three hundred feet of any church, school, or playground within a municipality, DOR must not grant a liquor license for that location. S.C. Code Ann. § 61-6-120 (Supp. 1999).

The 300 foot rule is not violated in this matter. The nearest church is located approximately four-tenths of a mile from the proposed location, and the nearest school is located approximately 1.8 miles from the proposed location.

b. Suitable Location

A second criteria for judging the appropriateness of the location of a retail liquor store is whether the location is a suitable location. S.C. Code Ann. § 61-6-910(2) (Supp. 1999). The suitable location issue is a highly factual determination.

In general, consideration may be given to any factors that demonstrate 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). Geography alone is not the sole suitability consideration, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

While not all inclusive, numerous location factors are considered. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). The impact of the proposed location upon traffic in the area can be a consideration. Palmer, supra. The character of the entire area as rural versus commercial may be considered. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Further, objections to the permit must be based upon adequate factual support. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

Here, no evidence exists of any significant criminal activity at the location nor of any traffic concerns. Additionally, the distances to churches and residences are sufficient not to present a problem to conducting worship services or residential living. In fact, the overall character of the immediate area is highly commercial with several retail businesses, some of which hold a liquor license or a beer and wine permit. Such an environment is not an improper setting for a retail liquor business. Accordingly, the proposed location is suitable for utilization of a retail liquor license.

c. Whether citizens are adequately served

The protestant argues that his business will suffer if a retail liquor license if granted to Rein for the proposed location. He maintains that the area is more than adequately served by the three existing liquor stores in the community. Rein maintains that the growth in the area's population and new construction in the immediate area of the proposed location will generate additional demand for the purchase of liquor.

DOR may, in its discretion, limit the further issuance of retail dealer licenses in a political subdivision if it determines that citizens desiring 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. S.C. Code Ann. § 61-6-170 (Supp. 1999).

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. ⁽²⁾ See Alok Pandey, Pandey, Inc., d/b/a Party Pop Shop/One Stop Liquor v. South Carolina Department of Revenue and Taxation, and Vestal McCarty, Docket No. 95-ALJ-17-0527-CC.

The evidence in this case does not establish that the public safety, health or welfare is endangered by the issuance of a license to Rein due to any excess of retail liquor stores in the area. Further, there is insufficient evidence that area citizens are more than adequately served by the existing liquor stores in the area. Therefore, a discretionary denial pursuant to § 61-6-170 is not appropriate.

DOR is ordered to grant Rein's application for a retail liquor license at 431 St. James Avenue, Goose Creek, South Carolina.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 23rd day of August, 2000

Columbia, South Carolina

1. DOR may, in its discretion, limit the further issuance of retail dealer licenses in a political subdivision if it determines that citizens desiring 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. S.C. Code Ann. § 61-6-170 (Supp. 1999).

2. Section 61-6-170 (Supp. 1999) was formerly codified as section 61-3-480 (Rev. 1990). The substantive content of the statute has not changed.