SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division (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. (1986 and Supp. 2000) for a contested case hearing. The Petitioner, Monarch Enterprises, Inc., d/b/a Monarch Liquors, seeks a retail liquor license. ⁽¹⁾ 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 16, 2002. Respondents Norman R. Wiedow and Patricia C. Taylor, who were originally Protestants in this matter, also filed separate Motions to Intervene on or about January 19, 2002. A hearing was held on this matter on February 19, 2002, at the offices of the Division in Columbia, South Carolina. At the commencement of the hearing, I entertained argument on the Motions to Intervene and ruled that the Protestants be granted party status.

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 is seeking a retail liquor license for Monarch Enterprises, Inc., d/b/a Monarch Liquors. The proposed location is situated at 3125 Bees Ferry Road, Charleston, South Carolina.

3. The proposed retail liquor store is located in a commercially zoned area of Charleston, South Carolina at Bees Ferry Crossing Shopping Center (Bees Ferry Center). Bees Ferry Center is a new shopping center located between and in close proximity to at least three busy highways in a rapidly developing area west of the Ashley River in Charleston County.

4. 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 licensee has not had a license for the sale of alcoholic liquors revoked within the last five years. Also, the licensee has no criminal record and is of sufficient moral character to receive a retail liquor license.

5. Although the Petitioner/licensee does have an interest in another liquor store, the Petitioner/licensee has not been issued more than three retail liquor licenses, nor does the licensee have an interest, financial or otherwise, in more than three retail liquor stores. See S.C. Code Ann. § 61-6-140 (Supp. 2000).

6. Pursuant to S.C. Code Ann. § 61-6-180 (Supp. 2000), notice of the application was published in a newspaper of general circulation and was lawfully posted at the location.

7. In accordance with S.C. Code Ann. § 61-6-120 (Supp. 2000), there was no evidence presented that the proposed location is within three hundred feet or unreasonably close to a school or playground.

8. The Respondents argue that a retail liquor license should not be issued for the Petitioner's store because:

a. The published notice in a newspaper of general circulation was inadequate as it did not list the exact location of the store;

b. The proposed location is too close to a nearby church; and

c. The vicinity is already adequately served with liquor stores and this location would bring economic harm to the Respondents.

9. The Respondents/Protestants, who own or have an interest in a competing retail liquor store approximately one mile from the proposed location, argue that a retail liquor license should not be issued for this store because an additional retail liquor store in the immediate area would adversely harm the profitability of competing area retail liquor stores. They also assert that the area already contains a sufficient number of liquor stores and that if this license is granted the area will become "saturated." See S.C. Code Ann. § 61-6-910(3) (Supp. 2000). The Respondents are specifically concerned that the proposed location will diminish their business by taking away their clientele, thereby causing them economic harm. However, the Respondent's evidence did not support any of these propositions. In fact, the Petitioner's other retail liquor store is approximately two miles from the proposed location. Furthermore, the Respondents did not present any expert evidence other than their own speculation that the area was too saturated to economically support another retail liquor store or 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.

10. Although there are several retail liquor stores within five miles of this area, based on the growth and development of this area, 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. 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. § 61-6-140 (Supp. 2000) restricts a licensee from possessing more than three retail licenses while S.C. Code Ann. § 61-6-150 (Supp. 2000) ultimately prohibits an individual from having an interest in more than three retail liquor stores in the state of South Carolina. The Petitioner(s) in this case established that they have interests in only two retail liquor stores in this state.

4. The Respondents contend that the published notice in a newspaper of general circulation was inadequate as it did not list the exact location of the store. S.C. Code Ann. § 61-6-180(A) (Supp. 2000) sets forth, in relevant part:

The notice must be in the legal notice section of the paper or in an equivalent section if the newspaper has no legal notice section, be in large type, cover a space one column wide and not less than two inches deep, and state the type of license applied for, and the exact location at which the proposed business is to be operated.

(emphasis added). The Respondents/Protestants argue that the newspaper publication was insufficient because, although it listed the location's correct street address as 3125 Bees Ferry Road, it failed to list the suite or unit number of the location. In support of their argument, the Respondents relied upon Jain, Inc., d/b/a Village Liquors v. South Carolina Department of Revenue and Bob Sherr, 01-ALJ-17-0352-CC (October 3, 2001). However, the facts of that case are dissimilar from the facts of this matter. In that case, Judge Stevens found the published notice to be insufficient to satisfy Section 61-6-180(A) because the notice listed the proposed location as "2300 Decker Boulevard" when it was in fact "2316 Decker Boulevard." Even though the evidence in that case substantiated that both 2300 and 2316 were businesses located in the same shopping center, those two locations held separate and distinct physical addresses. In fact, 2300 Decker Boulevard was an operating Eckerd's Drug Store, a business that does not meet the legal requirements of a retail liquor store in this state.

In the instant case, the published notice contained the correct street address but did not include a unit or suite number. Bees Ferry Crossing Shopping Center contains a Bi-Lo and, at the time of application, several empty stores. However, the entire shopping center maintains the physical address of 3125 Bees Ferry Road. Also, the Department's application file, which was admitted as the Court's Exhibit 1 at the hearing, contains a "Memorandum of Lease" between the Petitioner and the Petitioner's landlord. The address of the location leased by the Petitioner is listed simply as "3125 Bees Ferry Road" in that Memorandum of Lease. In reliance upon that document, the Petitioner utilized that address when publishing the notice in the local newspaper. Therefore, I find that the notice requirement of Section 61-6-180(A) has sufficiently been met.

Furthermore, in accordance with Section 61-6-180(B), notice also had to be posted at the location's store-front window for fifteen days. This posted notice was removed prior to the expiration of the fifteen days, thereby requiring the Department of Revenue or its agent to re-post the notice at the location for a longer time period in order to satisfy that statutory requirement. Therefore, I find that notice was sufficient for purposes of alerting the public of the proposed location.

5. Another concern of the Respondents is that this location is too close to a nearby church, in contravention to S.C. Code Ann. 61-6-120 (Supp. 2000). Section 61-6-120 sets forth, in relevant portion:

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 . . . .

(emphasis added). As set forth above, I conclude that there was no evidence presented that the proposed location is within three hundred feet of a church. Furthermore, the proposed location is not unreasonably close to a school or playground. Although the Respondents/Protestants raised this issue, insufficient evidence in the form of measurements was presented to support their contention. To the contrary, in its investigation of this license application, the Department of Revenue found that the proposed location was not within three hundred feet of a church.

6. The ultimate crux of the Respondents' protest is that they will be in direct competition with this liquor store, a situation they are trying to prevent. They contend that this retail liquor license should be denied because there is an over saturation of retail liquor stores in the area of the proposed location. S.C. Code Ann. § 61-6-910 (Supp. 2000) sets forth, in relevant part:

The department must refuse to issue any license under this article or Article 7 of this chapter if the department is of the opinion that:

(3) a sufficient number of licenses have already been issued in the State, incorporated municipality, unincorporated community, or other community.

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 61-6-910 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⁾ However, aside from establishing that other licensed locations exist within the immediate area of the proposed location, the Respondents did not establish that the public safety, health or welfare will be endangered by the issuance of a license in this case because of a plethora of retail liquor stores. Moreover, though I do not find that the economic viability of businesses already licensed in the area is a proper issue to consider, the Respondents, nevertheless, did not establish that the area was too saturated to economically support another retail liquor store. Therefore, the proposed location is not unsuitable pursuant to Section 61-6-910.

7. 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 a Protestant 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).

8. 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).

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

ORDERED that the retail liquor license of Monarch Enterprises, Inc., d/b/a Monarch 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

February 22, 2002

Columbia, South Carolina

1. Manoj Vithlani is listed as the owner of the proposed location on the Department's application. He is listed as the President of Monarch Enterprises, Inc., while his wife, Susmita Vithlani, is listed as the Secretary of that corporation. The Department transmitted this file to the Division without listing Manoj Vithlani as an individual Petitioner.

2. The underlying basis for consideration of economic viability of businesses already licensed in the area is that "licensees who attempt to operate with inadequate resources oftentimes succumb to the temptation of committing violations of the Alcoholic Beverage Control Law." Tobkes v. O'Connell, 272 A.D. 240, 70 N.Y.S.2d 494, 496 (1st Dep't 1947). However, I find that reliance upon an assumption that licensees will engage in unlawful conduct is speculative and based upon flawed reasoning.