ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000) and S.C. Code Ann. §§ 1-23-310 et seq. (Supp.
2000) for a hearing on the renewal of George S. Soodavar's, d/b/a ABC Store (Soodavar) retail liquor license. Petitioner seeks
renewal of his retail liquor license for the business located at 1572 Sam Rittenberg Blvd., Charleston, South Carolina. After timely
notice to the parties and Protestants, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina on
December 20, 2000. Pursuant to the motion of Jeffrey M. Nelson, attorney for Respondent, the Department of Revenue (Department)
was excused from appearing at the hearing. The issues considered at the hearing were Protestants' concerns about sale of alcohol to
underage persons and about over saturation of retail liquor stores in the area.
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:
- Petitioner seeks renewal of his retail liquor license for a business located at 1572 Sam Rittenberg Blvd., Charleston,
South Carolina. The business is located in a shopping center at the corner of Sam Rittenberg Blvd. and Ashley Hall Road.
- Petitioner is at least twenty-one years of age, a U.S. citizen, and has maintained his principal place of residence in the
State for at least thirty days prior to the date of making application for a retail liquor license. Petitioner is of good moral character.
Thus, Petitioner continues to meet the requirements for holding a retail liquor license.
- Petitioner holds two beer and wine licenses: one for the store next door to the business, and one in Harleyville, South
Carolina. One has been held for five years and has had no violations against it, and the other has been held for eight months and has
had one violation against it. Petitioner paid a $400 fine to the Department for the violation. Petitioner has not had a beer and wine
permit or an alcoholic liquor license revoked within two years of the date of the application.
- Petitioner's business is not located within 500 feet of any church, school, or playground.
- Mr. and Mrs. Janis are competitors of Mr. Soodavar, who own a retail liquor store located within approximately 150 to
300 yards of Mr. Soodavar's store. Mr. Janis filed a protest to Mr. Soodavar's initial application on October 27, 1999. However, due
to Department oversight, the protest was misplaced, and the license issued without a hearing or notice to Mr. Janis. The basis for his
initial protest was the over saturation of liquor stores in the area. Mr. Janis testified that there are five or six liquor stores located
within a four to five mile radius.
- Mr. and Mrs. Janis protest the renewal of Mr. Soodavar's license on grounds that he sells alcohol to underage persons.
However, they failed to present any credible evidence beyond mere allegations that such violations have occurred. Mrs. Janis
testified that several others would have testified but could not now be located due to the hearing date delay. However, this tribunal is
limited to consideration of the evidence in the record. Mr. Soodavar has been charged once with selling beer and wine to an underage
person and has paid the fine to the Department.
- The Department does not oppose Petitioner's application and would have renewed Mr. Soodavar's license but for the
protest.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
- S.C. Code Ann. § 61-2-260 (Supp. 2000) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South
Carolina Administrative Law Judge Division to hear this case.
- S.C. Code Ann. §§ 61-6-110 and 61-6-120 (Supp. 2000) establish the 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. 2000).
- Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law Judge
Division as the finder 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). 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 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. South Carolina ABC Comm'n, 276 S.C.
138, 276 S.E.2d 308 (1981).
- The Protestants initially opposed the application on the basis of over saturation of retail liquor stores in the area. S.C.
Code Ann. §61-6-170 (Supp. 2000) provides that the Department may, in its discretion, limit the issuance of licenses if it determines
the population to be more than adequately served by existing stores. S.C. Code Ann. §61-6-910 (Supp. 2000) provides in part that the
Department must refuse to issue a new license if a sufficient number of licenses have already been issued. The intent of the General
Assembly was to safeguard the public health, safety, and welfare. In the present case, there is insufficient evidence in the record to
indicate that the citizens in Petitioner's subdivision who desire to purchase alcoholic liquors are more than adequately served without
the renewal of Petitioner's license.
- Sale of alcohol to underage persons is a violation of S.C. Code Ann. §61-6-4070 (Supp. 2000). However, Mr.
Soodavar has only been cited once for a violation of this section. Exclusive enforcement power is vested with the Department under
S.C. Code Ann. §61-6-100 (Supp. 2000). Therefore, Protestants' remedy is to report suspected or alleged violations to the
Department. The Department's Revenue Procedure 95-7 sets forth penalty guidelines for violations of the Alcohol Beverage Control
laws. For retail liquor licenses, Revenue Procedure 95-7 provides for a $400 fine for the first offense, an $800 fine for the second
offense, a 45-day suspension of the license for the third offense, and revocation of the license for the fourth offense. If Protestants'
allegations are in fact true and are reported to the Department, the enforcement procedures will provide an adequate remedy for sale
of alcohol to underage persons in violation of the law.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ORDERED that the Department of Revenue continue to
process the renewal of George S. Soodavar's d/b/a ABC Store retail liquor license. There is no statutorily prescribed ground for
denying Petitioner's renewal application, based on the evidence in the record.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
December 29, 2000
Columbia, South Carolina |