South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Deborah Culler, d/b/a Monticello Party Pack & Monticello Package Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Deborah Culler, d/b/a Monticello Party Pack & Monticello Package Store
6037 & 6037A Monticello Road, Columbia, South Carolina

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0324-CC

APPEARANCES:
Deborah Culler
Petitioner, pro se

David Rodriguez
Protestant, pro se
 

ORDERS:

FINAL ORDER AND DECISION

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. (1986 & Supp. 2001) for a contested case hearing. Petitioner Deborah Culler seeks a renewal of the on-premises beer and wine permit and the retail liquor license for her restaurant and pool hall and her adjoining liquor store located, respectively, at 6037 and 6037A Monticello Road, Columbia, South Carolina. The Department of Revenue (Department) would have granted the renewal of the permit and license but for the protest filed by a local resident, David Rodriguez, regarding the suitability of location of Petitioner's establishment. Accordingly, the Department was excused from the hearing of this matter. After notice to the parties and the protestant, a hearing was held on October 17, 2002, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the location of Petitioner's establishment and the applicable law, Petitioner's application for the renewal of her on-premises beer and wine permit and retail liquor license is hereby granted.

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:

1. Petitioner submitted a renewal application for an on-premises beer and wine permit and a retail liquor license to the Department on July 17, 2002, for the premises located at 6037 and 6037A Monticello Road, Columbia, South Carolina. This application is incorporated into the record by reference.

2. Petitioner operates several businesses at the location on Monticello Road, including a restaurant and pool hall, a liquor store, and a clothing store. Petitioner has operated her businesses at the location for nearly twenty years.

3. Petitioner is a person of good moral character and is of good repute.

4. Petitioner is at least twenty-one years of age, is a legal resident and citizen of the United States, and has resided and maintained her principal place of abode in South Carolina for at least thirty days prior to filing her application for a beer and wine permit and liquor license.

5. Petitioner has not had a permit to sell beer and wine or a license to sell alcoholic liquors revoked within the five years preceding the filing of her application.

6. No other member of Petitioner's household has been issued a retail liquor license. Further, Petitioner has not been issued more than three retail liquor licenses, nor does she, her relatives, or any partnership, association, or corporation in which she is involved, have an interest, financial or otherwise, in more than three retail liquor stores.

7. The proposed location is situated along a four-lane road within the City of Columbia near several other commercial buildings, including a gas station. The nearest residence is approximately 528 feet from the proposed location and the nearest church is over three thousand feet from the location. There are no schools or playgrounds in the vicinity of the proposed location.

8. The protestant's opposition to the issuance of Petitioner's permit and license is primarily based upon his observation of illegal activities occurring around and immediately outside Petitioner's businesses and an incident record for the location obtained from the City of Columbia Police Department. The protestant is also concerned with the appearance of the location, particularly its cleanliness.

CONCLUSIONS OF LAW

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

1. Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2001) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2001).

2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]" Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984).

3. S.C. Code Ann. § 61-4-520 (Supp. 2001) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a suitable one. See id. § 61-4-520(6)-(7). S.C. Code Ann. §§ 61-6-110 and 61-6-120 (Supp. 2001) establish the criteria for determining eligibility for a retail liquor license. Additional requirements are set forth in S.C. Code Ann. §§ 61-6-130 to 61-6-190 (Supp. 2001). Further, S.C. Code Ann. § 61-6-910(2) (Supp. 2001) provides that an application for a license to sell alcoholic liquors must be denied if "the store or place of business to be occupied by the applicant is not a suitable place."

4. Although "suitable place" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of a particular location for the requested permit or license. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5. The determination of suitability of location is not necessarily solely a function of geography. Rather, 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); Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6. Further, "a liquor license or permit may be properly refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community." 48 C.J.S. Intoxicating Liquors § 121 (1981).

7. However, without sufficient evidence of an adverse impact on the community, a permit or license application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a permit or license is protested is not a sufficient reason, by itself, to deny the application. See id. § 119.

8. Moreover, permits to sell beer and wine and licenses to sell liquor are neither contracts nor property rights. Rather, they are merely permits and licenses, issued or granted in the exercise of the police power of the state to do what otherwise would be unlawful to do, and to be enjoyed only so long as the restrictions and conditions governing their continuance are complied with. Feldman v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).

9. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of an on-premises beer and wine permit and a retail liquor license. In making a decision in this matter, this tribunal is constrained by the record before it and the applicable statutory and case law. In the case at hand, the protestant testified that he drives by the location every afternoon when returning from work and, while passing, has noticed illegal activity, such as public drunkenness, and suspicious activity suggestive of criminal drug transactions. Further, he offered an incident list for the location from the City of Columbia Police Department for the period of July 1998 to May 2002. While this tribunal does not question the veracity of the protestant, it is nonetheless telling that there is no evidence in the record from the City of Columbia Police Department suggesting that it cannot provide adequate police protection to the area if Petitioner's permit and license are renewed, or that the number of incidents that have occurred at or near Petitioner's businesses have placed a strain or burden on police resources in the area. Further, there was no opposition from local law enforcement to the renewal of Petitioner's permit and license. Thus, while this tribunal respects the arguments put forth by the protestant in opposition to Petitioner's permit and license, those arguments do not constitute a sufficient, concrete basis upon which to deny Petitioner's renewal application.

ORDER

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

IT IS HEREBY ORDERED that the Department of Revenue continue to process Petitioner's application for a renewal of her on-premises beer and wine permit and retail liquor license for the premises located at 6037 and 6037A Monticello Road, Columbia, South Carolina.

AND IT IS SO ORDERED.





______________________________

JOHN D. GEATHERS

Administrative Law Judge



October 28, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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