ORDERS:
FINAL ORDER AND DECISION
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). |