SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division ("Division") pursuant to S.C. Code Ann. §§ 61-2-260, 1-23-310, and 1-23-600 (Supp. 2001) for a contested case hearing. Sherri V. Gaillard and Bobby A. Harrington, d/b/a SBG Associates, a general partnership ("Applicants") seek a retail liquor license for a package store known as Party Town No. 1, located at 2324-A Two Notch Road, Richland County, Columbia, South Carolina, and an off-premise beer and wine permit for a party shop/convenience store known as Party Town No. 2, located at 2324-B Two Notch Road, Richland County, Columbia, South Carolina.

Ronald I. Paul filed a protest to the applications with the South Carolina Department of Revenue ("Department") on October 26, 2001, based on the "proposed location." Because of the protest, the hearing was required.

The South Carolina Department of Revenue ("Department") filed a Motion to be Excused from appearing at the hearing, stating that the Department would have granted the permit and the license but for the protest of the applications. By order dated December 21, 2001, however, the Department's Motion was denied.

Petitioners requested an expedited hearing, which was consented to by the Department and agreed to by the undersigned judge. Judicial economy dictated that the application requests be consolidated for hearing purposes. Notice of the consolidation of the cases for hearing purposes and of the hearing date was provided to both parties and to the protestant.

The hearing was held on January 9, 2002, at the offices of the Division at 1205 Pendleton Street, Columbia, South Carolina. The Petitioners, the Department, and the Protestant, Ronald L. Paul, appeared at the hearing. Evidence was introduced and testimony was given. However, because the notices of the applications had not been properly posted and displayed as required by statute, an Order was issued by the undersigned judge on January 11, 2002, requiring an agent from the State Law Enforcement Division to return to the location and place notices which could be viewed by the general public for the entire fifteen-day period. ⁽¹⁾ The Order further provided that the matter before the undersigned judge be held in abeyance pending the display of the notices and another hearing to be held on Thursday, January 31, 2002.

On January 11, 2002, Mr. Paul filed a Motion for Leave to Intervene as a party in this case. The Motion, however, was denied because Mr. Paul did not make the motion prior to or during the original hearing and did not give a basis for intervening as a party. On January 25, 2002, Willie Alston, Penny Huff, and Frankie Benjamin filed additional protests to the applications.

The second hearing was held on January 31, 2002. Appearances were made at the second hearing by Petitioner, the Department, and Mr. Paul. Protestants Frankie Benjamin, Penny Huff, and Willie Alston were given notice of the hearing but did not appear. At the hearing, Mr. Paul again moved to be made a party for the limited purpose of cross-examining witnesses. Upon objection by the Petitioners, the motion again was denied.

After carefully weighing all the evidence, this tribunal finds that both the retail liquor license and the off-premise beer and wine permit should be granted.

FINDINGS OF FACT

Having carefully considered the credibility of the testimony and accuracy of the evidence presented at the hearing and taking into consideration the burden of persuasion by the Petitioners and the Protestant, I make the following findings of fact by a preponderance of the evidence:

• Notice of the time, date, place, and subject matter of the hearing was given to all the parties in a timely manner.
• Sherri V. Gaillard and Bobby A. Harrington entered into a general partnership agreement under the trade name of SBG & Associates effective August 18, 2001. The partnership, Ms. Gaillard, and Mr. Harrington are the applicants for the beer and wine permit and the retail liquor license.

Applications and locations

• Petitioners seek a retail liquor license for the retail liquor store, known as Party Town No.1, located at 2324-A Two Notch Road, Columbia, Richland County, South Carolina. The designated agent for this location will be Sherri V. Gaillard. The Department assigned to this application file number: ABL File #32026189-0.
• Petitioners also seek an off-premise beer and wine permit for a full-service convenience/grocery store known as Party Town No. 2, located at 2324-B Two Notch Road, Columbia, Richland County, South Carolina. The Department assigned to this request file number: ABL File #32026188-1.
• Both stores are located in one building but are separated from each other by a wall. They have separate entrances from the outside.
• The hours of operation for both the retail liquor store and the convenience/grocery store will be from 9:00 a.m. to 7:00 p.m. Monday through Saturday of each week.
• Ms. Gaillard and Mr. Harrington have two full-time employees running the stores. Initially, Mr. Harrington was operating them. Now a separate clerk operates each store.
• Petitioners hope to have a store where all citizens will be welcome. Ms. Gaillard services the area in her position as a banker and knows many who live in the community.
• The real property where the two stores are presently operating is owned by Louise Anders, who together with her late husband, executed lease agreements involving the premises. Subsequently, through various lease agreements, the tenant rights to the property have devolved to Mahendra Jivan ("Jivan"). In August 2001, Jivan, as the Sublessor, and SBG Associates, as the Sublessee, entered into a Sublease Agreement whereby Petitioners leased the location for a period of 24months with an option to renew the lease for one fifteen-year period.
• The previous tenants at the location, Jagdish P. Patel and Ramen B. Patel, held an off-premise beer and wine permit and a retail liquor license at the location. They operated a party shop and the liquor store until August 1, 2001. On that date, they entered into a Sales Agreement whereby they sold to SBG Associates all their inventory, name, and goodwill in the business known as Party Town #1 located at 2324 Two Notch Road, Columbia, South Carolina.
• A map drawn by the SLED agent which was included in the filing from the Department shows the location and the division of each store. The map further shows the areas at the premises allocated for parking by customers at the stores.
• The locations are in a commercial area close to Providence Hospital and Benedict College. There are no churches, schools, or graveyards within 500 feet of the location.
• In 1985, Donnie J. Anders received a permit for the sale of beer and wine at the location and a license for the retail sale of liquor at the location. It has been licensed and permitted from that time to the present.

Residency and Qualifications of Petitioner

• Petitioner Sherri V. Gaillard is a resident and citizen of the City of Columbia, County of Richland, State of South Carolina where she has lived for the last eleven years. Her residence is 1 Natchez Court, Columbia, South Carolina.
• Ms. Gaillard was born on July 11, 1968, and is thirty-three years of age.
• She presently is employed with SouthTrust Bank in Columbia, South Carolina as a commercial lending officer. Prior to this employment, she was employed with First Citizens Bank for more than five years.
• SLED requested a criminal history report on Ms. Gaillard. She was found to have no criminal or conviction record. Petitioner is found to be of good moral character and repute. No evidence was given to show other than a good reputation in the community where she lives.
• She has never had a beer and wine permit or liquor license revoked.
• Petitioner Bobby A. Harrington is a resident and citizen of the County of Richland, State of South Carolina where he has lived for the last two years. He began his residency in this state in July 2001. His residence is 1916 Shadowood Drive, Columbia, South Carolina. He formerly lived in Fayetteville, North Carolina. He is the stepfather of Ms. Gaillard.
• Mr. Harrington was born on June 30, 1953, and is forty-eight years of age.
• He is self-employed, constructing houses and performing house repairs.
• SLED requested a criminal history report on Mr. Harrington. He was found to have no criminal record or conviction record. No evidence was presented to show that he does not have good moral character or does not have a good reputation in his community. He is found to be of good moral character.
• Mr. Harrington has never had a beer and wine permit or a liquor license revoked.

Notice Requirements

• On August 16, 23, and 30, 2001, notice of the applications were published in "The Columbia Star," a newspaper of general circulation in the area of the location.
• Further, SLED agent Sonja Ashford went to the location and physically placed notices of the applications at each separate location on October 3, 2001. She removed the notices on October 18, 2001.
• Agent Ashford went back to the locations on Friday, January 11, 2002, pursuant to Order of this tribunal, and placed notices of both the beer and wine permit application and the retail liquor store license on the store windows and approximately ten feet above the metal sliding doors. Ms. Ashford returned to the location on January 28, 2002, and retrieved the written notices from the stores.

Protest(s)

• But for the original protest by Mr. Paul, the Department would have issued both the beer and wine permit and the retail liquor store license without a hearing. Mr. Paul, however, filed a protest indicating he was concerned about the "proposed location."
• Mr. Paul is retired from the military and operates a retail liquor store at 2115 Two Notch Road, Columbia, South Carolina. He has been operating his liquor store since 1992 and has owned the property since 1985. At the hearing on January 9, 2002, Mr. Paul indicated he objected to the granting of the permit and license because:
• Trash was piled up alongside the building;
• Notices of the applications were posted on the windows at both stores and when the steel retractable door(s) was closed over the windows at night and during the weekends, the notices were not visible to the general public;
• A sign was placed on the door at Petitioner's location on January 8, 2002, which stated that liquor sales would be prohibited in the future "due to greed and ignorance by Ronald Paul"; and
• Statistics.

Mr. Paul stated that allowing the sign to be placed on the door and allowing trash to pile up somehow branded Petitioners as morally unfit and thus they should not be issued the permit and license. He further argued that the posting of the notices did not comply with the statutory requirement for them to be posted for fifteen days. He was unable to provide any testimony on any statistics at that hearing.

• The protest forms filled out by Willie Alston, Frankie Benjamin, and Penny Huff, each dated January 25, 2002, gave the following reasons for their protests:
• Proposed business location; and
• Moral character of applicant & employees.

None of these Protestants, however, appeared at the hearing.

• At the hearing on January 31, 2002, Mr. Paul testified that Frankie Benjamin works for him on a part-time basis in his liquor store.
• Mr. Paul further testified that there were too many retail liquor stores in the general vicinity of Petitioner's location. He also stated that the moral character of the Petitioners was in question.

CONCLUSIONS OF LAW

Based upon the foregoing findings of fact, I conclude, as a matter of law, the following:

• The Administrative Law Judge Division has subject matter jurisdiction to hear and determine this contested case pursuant to S.C. Code Ann. §§ 1-23-600 and 61-2-260 (Supp. 2001).
• S.C. Code Ann. §§ 61-6-110, et seq. (Supp. 2001) sets forth the requirements for determining eligibility for a retail liquor license. The applicant: (1) must be twenty-one years of age; (2) must be a legal resident of the United States; (3) must be a resident of South Carolina; (4) must have maintained his principal place of abode in South Carolina for at least thirty days prior to the date of the application; (5) must be of good repute, and; (6) must not have had revoked within five years preceding the filing of the application a license regulating the manufacture or sale of alcoholic liquors. The Petitioners meet the requirements herein.
• S.C. Code Ann. § 61-6-120 (Supp. 2001), addressing the application for a liquor license and the proximity of the proposed location to a church, school or playground, provides in pertinent part 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. Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground . . . .

• 23 S.C. Code Ann. Regs. 7-11 (1976) provides the method for measuring the distances referred to in § 61-6-120. No schools, churches, or playgrounds are within the proscribed proximity to render the proposed location unsuitable for the retail liquor license.
• S.C. Code Ann. § 61-2-160 (Supp. 2001) provides that no license or permit may be issued, renewed, or transferred unless the Department and the Internal Revenue Service determine that the applicant does not owe the state or federal government delinquent taxes, penalties, or interest. In this case, Petitioners owe none.
• S.C. Code Ann. § 61-4-520 (Supp. 2001), which sets forth the requirements for the issuance of a beer and wine permit, provides as follows:

No permit authorizing the sale of beer or wine may be issued unless:

(1) The applicant, any partner or co-shareholder of the applicant, and each agent, employee, and servant of the applicant to be employed on the licensed premises are of good moral character.

(2) The retail applicant is a legal resident of the United States, has been a legal resident of this State for at least thirty days before the date of application, and has maintained his principal place of abode in the State for at least thirty days before the date of application.

(3) The wholesale applicant is a legal resident of the United States and has been a legal resident of this State for at least thirty days before the date of application and has maintained his principal place of abode in the State for at least thirty days before the date of application or has been licensed previously under the laws of this State.

(4) The applicant, within two years before the date of application, has not had revoked a beer or a wine permit issued to him.

(5) The applicant is twenty-one years of age or older.

(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

(7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches. This item does not apply to locations licensed before April 21, 1986.

(8) Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business. The department must determine which newspapers meet the requirements of this section based on available circulation figures. However, if a newspaper is published in the county and historically has been the newspaper where the advertisements are published, the advertisements published in that newspaper meet the requirements of this section. An applicant for a beer or wine permit and an alcoholic liquor license may use the same advertisement for both if the advertisement is approved by the department.

(9) Notice has been given by displaying a sign for fifteen days at the site of the proposed business. The sign must:

(a) state the type of permit sought;

(b) state where an interested person may protest the application;

(c) be in bold type;

(d) cover a space at least eleven inches wide and eight and one-half inches high;

(e) be posted and removed by an agent of the division.

• The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a permit to sell beer and wine using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder's responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.
• Although "proper location" is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 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).
• 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 a 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).
• Any evidence adverse to the location may be considered. The proximity of a location to a church, school, or residences is a proper ground by itself, on which the location may be found to be unsuitable and a permit denied. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the judge can consider whether "there have been law enforcement problems in the area." Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
• Unless there is sufficient evidence of an adverse impact on the community, the application must be granted if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit 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).
• In considering the suitability of a location, it is relevant to consider whether the testimony in opposition to the granting of a license is based on opinions, generalities, and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, there is no question that the Petitioners are fit and of good moral character. All their actions in pursuing the permit and license have been appropriate. They are working individuals who have positions of prominence in the local community and they wish to provide a small grocery store for the people who live near the location. The undersigned judge was impressed with their demeanor in the courtroom. Any testimony given by the Protestant was purely conjectural, argumentative, and without factual support.

As to the argument that there may be too many retail liquor stores in the area of the location, the undersigned judge finds that this liquor store has been there for at least 16 years and most probably longer. Further, there is no objection by the Department based upon a saturation of liquor stores serving the population in that general area.

There was no evidence of any law enforcement problems in the general area of the proposed location, nor is there evidence that there have been incidents at the location in the past which should be considered in the issuance of a permit and license to the Petitioners. Further, the location is not close to any school, church, or playground which would, by statute, prohibit the issuance the permit and license. There is no evidence that small children play in its immediate vicinity. In fact, a motel is located to the rear of the location.

All the general statutory requirements have been met. Further, it appears that the location has been materially improved and the entry and exit of automobiles from the parking lot will not exacerbate the traffic flow in front of the location.

The major complaints of the Protestant are based upon conjecture and conclusions which the undersigned judge concludes are without basis. This judge does not see any evidence that law enforcement could not provide sufficient protection at the location and to residents in the general vicinity; there is no evidence of any safety problems. Further, no objection to the permit and license requests were made by the Richland County Sheriff's Office or the Columbia Police Department. If the businesses at this location are operated properly, there will be no negative impact upon the community.

• Pursuant to the provisions of S.C. Code Ann. § 61-4-540 (Supp. 2001), having found that the Petitioners have met their burden of proof in showing that they meet all the requisite qualifications and conditions, are fit persons, and that the proposed location is a proper one, I conclude that the Department must issue the off-premise beer and wine permit.
• I further conclude that the Petitioners meet the statutory requirements for holding a retail liquor license at the proposed location and that the Department must issue the retail liquor license.

ORDER

Based on the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that the Department must issue a retail liquor license to Petitioner's designated agent, Sherri V. Gaillard, d/b/a SBG Associates for a package store known as Party Town No. 1, located at 2324-A Two Notch Road, Richland County, Columbia, South Carolina upon payment of the required fees and costs.

IT IS FURTHER ORDERED that the Department must issue an off-premise beer and wine permit to Petitioner's designated agent, Sherri V. Gaillard, d/b/a SBG Associates for a party shop/convenience store known as Party Town No. 2, located at 2324-B Two Notch Road, Richland County, Columbia, South Carolina upon payment of the required fees and costs.

AND IT IS SO ORDERED.

__________________________________

MARVIN F. KITTRELL

Chief Administrative Law Judge

February 4, 2002

Columbia, South Carolina

1. The notices were obscured by a pull-down security gate during the times that the business was closed. The notices, therefore, were not "displayed" as required by S.C. Code Ann. §§ 61-4-520 and 61-6-180 (Supp. 2001).