SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2001) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2001) upon filing of an application by Petitioner International Liquors, Inc. ("Petitioner") for a retail liquor license for a location at 4350-B St. Andrews Road, Columbia, South Carolina. Upon receipt of several written protests to the application, the South Carolina Department of Revenue ("Department") transmitted the case to the Administrative Law Judge Division ("ALJD") for a hearing. After timely notice to the parties and the protestants, a contested case hearing was held on March 18, 2002, at the ALJD in Columbia, South Carolina. At the commencement of the hearing, Protestants Tony Kokolis and Tony's Party Shop, Inc., moved to be admitted as Intervenors. Despite the untimely nature of the motion ⁽¹⁾, said motion was granted after neither party stated an objection. Testifying on behalf of the Intervenors were the Honorable Chip Huggins, Gary Loshway, Michael Green, and Tony Kokolis. Vladimir Bromberg is the owner/operator of International Liquors and testified in support of the application.

FINDINGS OF FACT

Having carefully considered all testimony 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:

• Notice of the time, date and place of the hearing was given to the Petitioner, the Protestants, and the Department.

• Vladimir Bromberg, on behalf of International Liquors, Inc., seeks a retail liquor license for the proposed location of 4350-B St. Andrews Road, Columbia, South Carolina.
• The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2001) concerning the age, residency, and reputation of the Petitioner are properly established.
• The Petitioner has no criminal record and is of sufficient moral character to receive a retail liquor license.
• The proposed location is the second suite in a strip of businesses comprising a large shopping center and is situated near the edge of the shopping center's rearmost property, where the shopping center's property abuts the property of Seven Oaks Park ("Park"), a large municipally-owned recreation facility located behind the shopping center.
• Seven Oaks Park is a large piece of property encompassing several ballfields, a gymnasium, and several offices used by the Irmo-Chapin Recreation Commission.
• DOR denied International Liquors' application in part because the proposed location is located within 500 feet of the Park ⁽²⁾. The Petitioner does not dispute that, at present, the proposed location is located within 500 feet of the Park. However, the Petitioner proposes to construct a fence between the Park and the proposed location so as to increase the distance between the Park and the proposed location as measured pursuant to state law.
• In addition, DOR received several written protests to the issuance of a license for the proposed location. One of those protests was made by Tony Kokolis and Tony's Party Shop, Inc., who were made Intervenors during the hearing.
• Tony Kokolis owns Tony's Party Shop, Inc., located within one-half mile of the proposed location. Tony's Party Shop is one of several liquor stores located in the St. Andrews/Irmo area. Mr. Kokolis believes that the area already has too many liquor stores in relation to the area's population. By referring to Florida's statutes regarding the issuance of retail liquor licenses, Mr. Kokolis stated that a minimum population of 5000 is required to support one liquor store. Mr. Kokolis testified that thirteen liquor stores currently serve approximately 43,000 residents of the area. On cross-examination, Mr. Kokolis admitted that his population figure was obtained from the United States Post Office and was not necessarily reflective of the actual number of residents in the area. In addition, Mr. Kokolis admitted that South Carolina has made no such findings regarding the minimum population to support a liquor store in South Carolina.
• In addition to his concerns regarding the number of liquor stores in the area, Mr. Kokolis objects to the issuance of a retail liquor license for the proposed location because of its proximity to the Park.
• Further, other residents of the area, a business operator, and the Honorable Chip Huggins, Representative for the affected State House District, testified on behalf of the Intervenors. Each stated his concern that the Park was too close to the proposed location.
• I find that the evidence offered is insufficient to demonstrate that the St. Andrews/Irmo area is already adequately served by existing retail liquor stores.
• I find that the evidence offered shows that, at present, the proposed location is within 500 feet of a church, school, or playground.

CONCLUSIONS OF LAW

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

• S.C. Code Ann. § 1-23-600 (Supp. 2001) 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. 2001) grants the Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
• S.C. Code Ann. § 61-6-110, et seq. (Supp. 2001) sets forth the requirements for determining eligibility for a retail liquor license.
• S.C. Code Ann. § 61-6-170 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.

S.C. Code Ann. § 61-6-170 (Supp. 2001).

• The ultimate crux of the Intervenors' argument is that the retail liquor license should be denied because there is an over-saturation of retail liquor stores in the area of the proposed location.
• 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 61-6-170 was not to ensure the 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. See Alok Pandey, Pandey, Inc., d/b/a Party Pop Shop/One Stop Liquor v. South Carolina Department of Revenue and Taxation, and Vestal McCarty, Docket No. 95-ALJ-17-0527-CC. However, aside from averring that thirteen liquor stores, some of which are now closed, exist in the St. Andrews/Irmo area, the Intervenors did not establish that the public safety, health or welfare is endangered by the issuance of a license in this case because of a plethora of retail liquor stores. As such, the proposed location is suitable with respect to the provisions of Section 61-6-170.

• S.C. Code Ann. § 61-6-120 (Supp. 2001) provides, in part:

The Department shall not grant or issue any license...if the place of business is 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.

S.C. Code Ann. § 61-6-120(A) (Supp. 2001).

• At present, the Petitioner meets all of the statutory requirements for holding a retail liquor license at the proposed location except that the proposed location and the Park are within five hundred feet of each other. However, the Petitioner proposes to construct a fence that can at least arguably increase to five hundred feet or more the distance, computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare between the Park and the proposed location. Because the Department has not yet had an opportunity to evaluate Petitioner's proposal, this issue is REMANDED to the Department so that it may do so.

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

IT IS HEREBY ORDERED that this case is remanded to the Department for the sole purpose of determining whether Petitioner's proposal to erect a fence will bring the Petitioner into statutory compliance such that the Department may issue a conditional license;

IT IS FURTHER ORDERED that all Protestants who failed to appear at the contested case hearing are deemed to have abandoned their protests;

IT IS FURTHER ORDERED that the case caption be amended to reflect the addition of the Movants-Intervenors as parties;

AND IT IS SO ORDERED.

_______________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

March 20, 2002

Columbia, South Carolina

1. Rule 20 of the ALJD Rules of Procedure provides, in part, that unless otherwise ordered by the administrative law judge, "the motion to intervene shall be filed at least twenty (20) days before the hearing." Rule 20 (C), ALJDRP.

2. The other ground upon which DOR initially denied International Liquors' application, failure to comply with statutory notice provisions, was cured by International Liquors' subsequent posting and publication pursuant to S.C. Code Ann. § 61-6-180 (Supp. 2001).