SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001) for a contested case hearing. Petitioner Thomas E. Tillman seeks a retail liquor license for his party shop located at 1746 Shop Road, Columbia, South Carolina. The Department of Revenue (Department) would have granted the permit but for the protest filed by Reverend Eric W. Davis, pastor of nearby Mount Calvary Baptist Church, regarding the suitability of the store's location. Accordingly, the Department was excused from the hearing of this matter. After notice to the parties and the protestant, ⁽¹⁾ a hearing was held on February 5, 2002, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the applicable law and the evidence presented regarding the suitability of the proposed location, particularly that concerning criminal activity at and near the location, Petitioner's application for a retail liquor license is hereby denied.

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:

1. Petitioner submitted an application for a retail liquor license to the Department on July 24, 2001, for the premises located at 1746 Shop Road, Columbia, South Carolina. This application is incorporated into the record by reference. Petitioner leases the premises from Latson Hayes and currently operates a party shop in an adjoining portion of the building housing the proposed location.

2. Petitioner is over twenty-one years of age, is a citizen of the United States, and has maintained his principal place of abode in South Carolina for at least thirty days prior to making his application for a retail liquor license.

3. Petitioner is a person of good moral character and has not had a license to sell alcoholic liquors revoked within the five years preceding the date of his application.

4. The proposed place of business is not located within 500 feet of any church, school, or playground. Measured along public thoroughfares, Mount Calvary Baptist Church is approximately 678 feet from the proposed location.

5. No other member of Petitioner's household has been issued a retail liquor license. Further, Petitioner has not been issued more than three retail liquor licenses nor does he, a relative, or any partnership, association, or corporation in which he is involved have an interest, financial or otherwise, in more than three retail liquor stores.

6. Notice of Petitioner's application was published in The Columbia Star once a week for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

7. At the hearing of this matter, Judy G. Spell, 911 Communications Assistant Administrator for the Columbia 911 Communication Center, presented a Richland County Sheriff's Department Premise History for the proposed location. This report lists 911 emergency calls made from the proposed location, including calls made from pay telephones on the property, for the two-year period running from January 2000 to December 2001. The report lists 132 emergency calls, or an average of 5.5 calls per month, for the 24-month period. ⁽²⁾ The list of calls includes calls made to report carjackings, fights, domestic violence, and civil disturbances. Other evidence in the record suggests that most of these calls originated from the pay phones on the property, and not from within the proposed location. Nevertheless, this report indicates that Petitioner's store is situated in a high crime area.

8. Lieutenant Marty Reaves, an officer of the Richland County Sheriff's Department assigned to the area in which Petitioner's business is located, testified at the hearing. Lieutenant Reaves testified that he has responded to numerous calls at or near the proposed location, including calls regarding loitering, public intoxication, car thefts, disturbances, fights, drug deals, and an incident in which Petitioner himself was physically attacked. Lieutenant Reaves further testified that, given the level of criminal activity occurring at or near the proposed location, he did not think that the location was suitable for the operation of a liquor store.

9. Reverend Davis, the protestant, also testified at the hearing. He stated that he has found Petitioner's business to be a magnet for criminal activity. Consequently, he believes that the operation of a liquor store at the proposed location would exacerbate the crime problem in the area and impede efforts made by his church and other community organizations to improve the local community.

10. Petitioner acknowledges the history of criminal activity at or near his business. However, he contends that the criminal activity is unrelated to his operations, and is instead the result of the convenience of the location as a community meeting place and a place to use the telephone.

CONCLUSIONS OF LAW

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

1. Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001).

2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]" Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984).

3. S.C. Code Ann. §§ 61-6-110 and 61-6-120 (Supp. 2001) 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. 2001). Although the suitability of the proposed location is not listed in Section 61-6-110 or 61-6-120 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (holding that, although the minibottle licensing statute did not specifically mention suitability of location, such a consideration was inherent in the discretionary authority of the Commission to grant or deny a license application).

4. Although "suitable location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of a particular location for the requested license. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5. The determination of suitability of location is not necessarily solely a function of geography. Rather, 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. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

7. "[A] liquor license or permit may be properly refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121, at 501 (1981).

8. The denial of a license to sell alcoholic beverages is appropriate where the proximity of the proposed outlet to areas of public congregation would aggravate problems related to the consumption of alcohol in public. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); see also Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (upholding denial of retail beer and wine permit where applicant's property was already the site of congregations of people attended by some consumption of alcohol and disorder). Such denial is particularly appropriate when the public areas surrounding the proposed location have been the source of constant law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); see also Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975) (upholding denial of retail beer and wine permit upon evidence that local law enforcement had constant problems with public intoxication in the vicinity of the applicant's store).

9. Given the history of frequent criminal activity and public disturbances at and around the proposed location, I find that the operation of a liquor store at the location would be detrimental to the general welfare of the surrounding community.

There is ample evidence in the record establishing that Petitioner's property and surrounding lots are the site of frequent criminal disturbances, including problems ranging from loitering and public intoxication to fighting and the sale of illegal drugs. The addition of the sale of liquor to this volatile mix would only exacerbate the community's serious crime problem. And, while Petitioner is correct in noting that much of this criminal activity is not caused by his business and that much of it is beyond his control, it is equally true that his business has become a gathering place for certain elements of the community, and that the expansion of his business into the sale of liquor would only make a bad situation worse.

Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973), is instructive on this point. In that case, a grocery store and launderette was seeking a retail beer and wine permit. Local law enforcement officers testified that the store's parking lot, which, through no fault of the store, had become a place for local residents to congregate, was the site of frequent disturbances and other criminal activity. The South Carolina Supreme Court upheld the Alcoholic Beverage Control Commission's denial of the permit on the ground that, as "congregations of people on [the applicant's] property are not infrequently attended by some consumption of alcohol and disorder . . . .[,] the Commission could reasonably have concluded that the situation would be worsened by making cold beer immediately available." Id. at 58, 194 S.E.2d at 193. Such is the case here. Petitioner's party shop and nearby lots have become a place of congregation not infrequently attended by the consumption of alcohol and other intoxicants and by disorderly and criminal conduct. Accordingly, I conclude that condition of the community surrounding Petitioner's property would be worsened by making liquor immediately available from Petitioner's store.

10. As the trier of fact, the issuance or denial of a permit rests within the sound discretion of this tribunal. Inherent in the power to issue a permit is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of licensure in the instant case is compelled because issuing Petitioner's retail liquor license would be detrimental to the inhabitants of the community surrounding Petitioner's store.

ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that Petitioner's application for a retail liquor license for the premises located at 1746 Shop Road, Columbia, South Carolina, is DENIED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

February 14, 2002

Columbia, South Carolina

1. On January 28, 2002, Joenathan Chaplin, attorney for Reverend Davis, filed a motion requesting that this tribunal grant Reverend Davis leave to intervene in this matter as a party of record. However, as the motion was filed only eight days before the scheduled hearing of this matter, see ALJD Rule 20C (requiring that motions for intervention filed less than twenty days before a hearing state good cause for the failure to intervene earlier), and as Petitioner was not served with a copy of the motion, see ALJD Rule 20A (requiring that motions for intervention be served on all parties), the motion for leave to intervene was denied on the record at the hearing of this case.

2. Even when an anomalously high month-February 2000 with 21 calls-is excluded, the average number of 911 calls made per month from the proposed location remains high at 4.8 calls/month.