SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter originally came 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, which was conducted on March 18, 2002.

Based on the testimony and other evidence presented during the March 18 hearing, this tribunal concluded that the Petitioner meets all of the statutory requirements for holding a retail liquor license at the proposed location except that the proposed location is located within 500 feet of a park.

By Order dated March 20, 2002, this matter was remanded to the Department of Revenue 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.

By letter dated April 5, 2002, the Department notified the Intervenors that it intended to issue a retail liquor license to the Petitioner for the proposed location. On April 15, 2002, Intervenors Tony Kokolis and Tony's Party Shop, Inc., filed a Motion to Reopen the matter for argument as to whether or not a retail liquor license should be issued to the Petitioner. After timely notice to the parties, a hearing was held on April 26, 2002 on Intervenors' Motion to Reopen.

During the course of the hearing, the Intervenors presented the testimony of Dr. Thomas Pitts, a dentist whose office is adjacent to the shopping center; Ms. Beverly Brandeis, Chair of the Board of the Irmo-Chapin Recreation Commisssion; Senator-elect Jake E. Knotts, whose new Senate district encompasses the Seven Oaks Park area; and Senator Andre Bauer, who previously represented the Seven Oaks Park area as a state House member. None of the Intervenors' witnesses testified or otherwise presented evidence that the construction of the proposed fence would not increase the shortest distance along the public thoroughfare to greater than 500 feet. Consequently, pursuant to Petitioner's agreement to construct a fence comporting with the Department's requirements, as well as its agreement to abide by the restrictions set forth herein, Petitioner's application for a conditional retail liquor license at the proposed location is granted.

FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the April 26, 2002 hearing, and incorporating herein all Findings of Fact set forth in the Order of March 18, 2002, I hereby make the following limited findings of fact by a preponderance of the evidence:

• After approving Petitioner's proposal that a four-feet high, chain-link fence be constructed along the border of the property owned by the Seven Oaks Shopping Center that would block the normal route of pedestrian traffic between the proposed liquor store and Seven Oaks Park, the Department informed the Intervenors that it intended to issue a retail liquor license to the Petitioner.
• On April 12, 2002, the Intervenors made a Motion to Reopen this matter, stating in its accompanying letter that "the distances are not met and that the location is still inappropriate based upon the close proximity to Seven Oaks Park." Pursuant to the request of the Intervenors, a hearing was held on April 26, 2002.
• During the hearing, Senator-elect Jake E. Knotts testified that the proposed liquor store was a major issue for the people of his new district. In addition, Senator Andre Bauer testified that he had run into a similar situation in the past with his own office, which is located on property adjacent to a liquor store. Senator Bauer testified that he and his staff frequently find trash and bottles on his property. It is Senator Bauer's belief that the patrons of the neighboring liquor store have no regard for his property.
• Ms. Beverly Brandeis, Chair of the Irmo-Chapin Recreation Commission, testified that the Commission opposes a liquor store located so close to Seven Oaks Park, which is run by the Commission. The facilities located at Seven Oaks Park serve a population of 60,000 to 75,000 people. The Commission sponsors after-school programs, recreation programs for all ages, and tournaments. The Park houses 6-8 playing fields, a soccer/football field, concession stands, and a gymnasium. The Park has won a national award for its programs.
• Dr. Thomas Pitts is a dentist whose practice is located adjacent to the Seven Oaks Shopping Center. His property abuts the shopping center's property on the shopping center's western boundary. Dr. Pitts is aware that the proposed fence will extend to the shopping center's western boundary and is concerned that the fence will force pedestrians and bicylists to trespass on his property to gain access to the shopping center. However, Dr. Pitts admitted that he was aware that the proposed fence would not cross the shopping center's property line and that the shopping center could construct such a fence whether or not the proposed location is granted a liquor license.
• Edward E. Smith, Jr., a SLED agent assigned to Alcohol Investigations, testified that he measured the shortest distance along the public thoroughfare between the Park and the proposed location, taking into account the proposed fence, to be 763 feet.
• I find that the evidence offered shows that the proposed location is in excess of 500 feet of a church, school, or playground as measured in accordance with S.C. Code Ann. § 61-6-120 (Supp. 2001).

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. § 61-6-120 (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).

• None of the witnesses testifying on behalf of the Intervenors offered any evidence that the distance between the proposed location and the Park, when taking into account the proposed fence, would be less than five hundred feet as measured by the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare between the Park and the proposed location. Instead, the Intervenors' witnesses testified regarding the unsuitability of the location. Because this tribunal reached a final decision with respect to this issue in its March 20 Order, reserving only the distance issue for consideration by the Department upon remand, such testimony is untimely. ⁽¹⁾
• Instead, all evidence shows that Petitioner meets all of the statutory requirements for holding a retail liquor license at the proposed location so long as it constructs the fence in accordance with its proposal and approved by the Department. Once the fence is constructed, the proposed location will be approximately 763 feet from Seven Oaks Park, as computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare between the Park and the proposed location. Consequently, a conditional liquor license is granted subject to the following stipulations, which must be agreed to and adhered to as a condition of retaining the license:
• Petitioner shall not display a Red Dot on the rear of the proposed location or on the side of the shopping center, nor any other location which may be visible from the Park. Further, Petitioner shall not display a Red Dot on the Front of the proposed location, except that Petitioner may display a Red Dot (or series of Red Dots) on the door of the proposed location such that no Red Dot is visible to the naked eye from St. Andrews Road or Leisure Lane;
• Petitioner shall not store any trash, including boxes in which liquor was transported, in the area located behind the proposed location, unless that trash is wholly contained in an authorized garbage receptacle;
• Petitioner shall ensure that the area surrounding the proposed location remains free of any trash generated by its patrons.

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

IT IS HEREBY ORDERED that the conditional retail liquor license of Petitioner International Liquors, Inc., 4350 St. Andrews Road, Columbia, SC, be granted upon the Petitioner's written agreement to comply with the stipulations set forth herein and the payment of the required fees and costs;

AND IT IS SO ORDERED.

_______________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE

April 29, 2002

Columbia, South Carolina

1. This tribunal points out that, had the testimony of Ms. Brandeis, Senator Bauer, and Senator-elect Knotts been offered at the proper time, that is, during the March 18, 2002 hearing, a different decision regarding the suitability of the location may have been reached. However, the suitability of the location was fully litigated in the March 18 hearing.