ORDERS:
ORDER OF DISMISSAL
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-6-100 et
seq. (Supp. 2000), § 61-6-910 (Supp. 2000), and §§ 1-23-310 et seq. (Supp. 2000) for a contested case
hearing. The Petitioner, Kai-Ming Hsu, 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 January 24, 2001.
A hearing was held on this matter on April 3, 2001, at the offices of the Division in Columbia, South
Carolina. The Respondent, Desh Bector, who was originally a Protestant in this matter, made a Motion to
Intervene at the hearing. Though the Motion was made belatedly, the Petitioner did not object to Mr.
Bector's intervention as a Respondent. Therefore, I granted Mr. Bector's intervention and amended the
caption accordingly.
FINDINGS OF FACT
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 parties, 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, the
Respondents and the Protestants.
2. The Petitioner, Kai-Ming Hsu, is seeking a retail liquor license for Northside Package Shop. The address
of the location which the Petitioner seeks a license for is 1050 York St. NE, Aiken, South Carolina.
3. The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2000) 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 300 feet or unreasonably close to any church,
school or playground.
6. No other member of the 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. Respondent Bector and the Protestants object to the issuance of a license to the Petitioner for the
following reasons:
a) Granting the licence could result in the sale of liquor to local
students; and
b) Granting the license would economically harm the other retail
liquor stores in the area.
- Respondent Bector and the Protestants contend that the proposed location is
unsuitable because granting the license could result in the sale of retail liquor to local high school students.
Specifically, they argue that local students could get individuals who are old enough to buy liquor to
unlawfully purchase liquor for the students from the proposed location. The local high school is much
greater than 300 feet from the proposed location. In fact, the high school is one-third of a mile from the
proposed location. Furthermore, if the logic of Respondent Bector and the Protestants is applied without any
evidence indicating the Petitioner's propensity to commit such an act, it must be applicable in all license and
permit applications. Since the above unlawful act could occur as the result of every sale of beer, wine or
alcohol, no license or permit would ever be granted in South Carolina. I therefore do not find this argument
a proper reason to deny the suitability of a proposed location. Additionally, the Petitioner will run the store
at the proposed location himself and he testified that he will not sell alcoholic beverages to underage persons
at his liquor store.
9. The proposed retail liquor store is located in a commercially zoned area of Aiken, South Carolina. There
are three other retail liquor stores in the general vicinity of the proposed location. Respondent Bector, 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. Bector contends, as do the Protestants, that the issuance of a retail liquor store license to the Petitioner
would economically harm the business of the retail liquor stores in the vicinity of the proposed location.
However, neither Respondent Bector nor the Protestants presented any empirical evidence to support their
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.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
General Findings
1. S.C. Code Ann. § 1-23-600 (Supp. 2000) grants jurisdiction to the Administrative Law Judge Division to
hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260
(Supp. 2000) grants the Administrative Law Judge Division the responsibilities to determine contested
matters governing alcoholic beverages, beer and wine.
2. S.C. Code Ann. § § 61-6-110, et seq. (Supp. 2000) sets forth the general requirements for determining
eligibility for a retail liquor license.
3. S.C. Code Ann. § 61-6-1820 (Supp. 2000) provides that in order to obtain and maintain a retail liquor
license, the holder must be of good moral character. In South Carolina, there is no single criterion by which
to determine whether or not one possesses good moral character. S.C. Att'y Gen. Op. No. 2709, 1969 S.C.
Att'y Gen. Ann. Rep. 159. Generally, good moral character means that one should possess all elements
essential to make up that character, such as honesty and veracity. Id. See also Zemour, Inc. v. State
Division of Beverage, 347 So.2d 1102 (Fla. Dist. Ct. App. 1977); Broers v. Montana Dept. of Revenue, 773
P.2d 320 (Mont. 1989).
Suitability of the Location
4. S.C. Code Ann. § 61-6-120 (Supp. 2000) provides that:
The department shall not grant or issue any license provided for in this article or Article 7 of this chapter, if
the place of business is within three hundred feet of any church, school, or playground situated within a
municipality or within five hundred feet of any church, school, or playground situated outside of a municipality.
5. 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
Respondent Bector or the Protestants object 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).
6. In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to
the granting of a permit or license 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).
Number of Existing Retail Stores7. Respondent Bector and the Protestants also contend that the issuance
of a retail liquor store license to the Petitioner would economically harm their businesses. S.C. Code Ann. §
61-6-170 (Supp. 2000) 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, Respondent Bector and the Protestants 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 license should be granted.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the retail liquor license of Petitioner Kai-Ming Hsu for Northside Package Shop 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
April 18, 2001
Columbia, South Carolina |
