South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Robert W. Harbiston, B & L Liquors vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Robert W. Harbiston, B & L Liquors
9616 Hwy. 78, Ladson, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0563-CC

APPEARANCES:
Robert W. Harbiston, Pro Se Petitioner

Dakshesh K. Patel, Pro Se Protestant

Department of Revenue Excused from Appearing
 

ORDERS:

FINAL ORDER AND DECISION

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. (1986 & Supp. 2000) for a contested case hearing. The Petitioner, Robert W. Harbiston, seeks a retail liquor license. The Department of Revenue (Department) made a Motion to be Excused stating that but for the protest it received, the license would have been granted. This motion was granted by my Order dated January 16, 2002. A hearing was held on this matter on March 21, 2002, at the offices of the Administrative Law Judge Division in Columbia, South Carolina.



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 Petitioner and the Protestant, 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 Protestant, and the Department.

2. The Petitioner, Robert W. Harbiston, is seeking a retail liquor license for B & L Liquors. The location which the Petitioner seeks a license for is at 9616 Hwy. 78, Ladson, 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 (5) 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 five hundred 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 (3) retail liquor licenses, nor does he have an interest, financial or otherwise, in more than three (3) retail liquor stores.

7. The proposed retail liquor store is located in a commercial area of Ladson. There are two (2) other retail liquor stores in the general vicinity of the proposed location.

8. The Protestant, Dakshesh K. Patel, who owns a retail liquor store in the area, argues that a retail liquor license should not be issued for the Petitioner's store because there is not enough business in the area for two (2) profitable retail liquor stores. In other words, Mr. Patel contends that the issuance of a retail liquor store license to the Petitioner would economically harm his business. However, other than the above general assertion, the Protestant did not present any evidence to support this proposition. 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:

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 (3) retail licenses while S.C. Code Ann. § 61-6-150 (Supp. 2000) ultimately prohibits an individual from having an interest in more than three (3) retail liquor stores in the state of South Carolina. The Petitioner in this case established that he has interests in only two (2) other retail liquor stores in this state.

4. 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 the 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).

5. 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).

6. The Respondent's sole objection to the proposed location is that the issuance of a retail liquor store license to the Petitioner would economically harm his business. 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.

S.C. Code Ann. § 61-6-170 (Supp. 2000) further 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 South Carolina Supreme Court has not addressed the intent of Sections 61-6-170 or 910 or their predecessors. However, in Halbert v. Nebraska Liquor Control Commission, 206 Neb. 687, 294 N.W.2d 864 (1980), the sole question before the Nebraska Court was whether the Liquor Control Commission could "deny a license to one otherwise admittedly qualified, solely on the basis that by granting such license to an individual, the individual may, because of permitted business practices, obtain a particular 'competitive edge' over others not afforded the same business options." The Court held that "[w]e can find no basis in the law for permitting the Commission to engage in such determination and thereby to withhold licenses based upon their notion of whether one is receiving an unfair edge not related to the public interests." Furthermore, the Court found that "the purpose of limiting the number of licenses in a certain community must be related in some manner with furthering the interest of law and order and the well-being of the general public."

I find that the intent of the General Assembly in enacting Sections 61-6-170 and 910 was not to ensure economic viability of businesses already licensed in the area, but to safeguard the public safety and welfare of the citizens who live in the area. (1) Therefore in considering whether a "sufficient number of licenses have already been issued," the proper analysis is whether granting of the license would adversely impact the nature of the neighborhood and its inhabitants or the general welfare of the community. See 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). In this case, aside from establishing that other licensed locations exist within the area of the proposed location, the Protestant 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 Protestant, 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.



ORDER

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

ORDERED that the retail liquor license of Petitioner Robert W. Harbiston and B & L 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



March 25, 2002

Columbia, South Carolina

1. 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.


Brown Bldg.

 

 

 

 

 

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