ORDERS:
ORDER OF DISMISSAL
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
S.C. Code Ann. § 1-23-310, et seq. (Supp. 1994) for a hearing pursuant to the application of
Alok Pandey. Petitioner seeks an on-premises beer and wine permit (AI 104180) and a retail
liquor license (AI 104181) for businesses located at 6972-A Rivers Avenue and 6972-B Rivers
Avenue, within the city of North Charleston, South Carolina.
After timely notice to the parties and the protestant, a hearing was held at the
Administrative Law Judge Division in Columbia, South Carolina. By previous Order of this
Division, dated September 5, 1995, Vestal McCarty was granted leave to intervene as a party in
this action. The sole issue in dispute at the hearing was the suitability of the proposed business
locations. The on-premises beer and wine permit and the retail liquor license are 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 seeks an on-premises beer and wine permit for a business located at
6972-A Rivers Avenue, North Charleston, South Carolina.
2. Petitioner also seeks a retail liquor license for a business located at 6972-B Rivers
Avenue, North Charleston, South Carolina.
3. Petitioner's application to the South Carolina Department of Revenue and Taxation
("Department") was made a part of the record without objection.
4. The two proposed locations, 6972-A Rivers Avenue and 6972-B Rivers Avenue,
North Charleston, South Carolina, are separate but adjacent businesses which occupy the same
building in adjoining stores.
5. The proposed locations are situated off of Rivers Avenue ("Highway 52") which is
a six lane major thoroughfare.
6. The area surrounding the proposed locations is predominantly commercial in
nature.
7. The proposed locations are within the municipal boundaries of North Charleston.
8. The proposed locations are not within 300 feet of a church, school, or playground.
9. Trident Technical College is located across the highway from the proposed
locations. Agent Robin Cosner Presnell was present at the hearing of this matter and was ordered
by this tribunal to measure the distance from the proposed locations to Trident Technical College
pursuant to 23 S.C. Code Regs. 7-11 (Supp. 1994).
10. Agent Presnell computed the distance from the proposed locations to Trident
Technical College, by following the shortest route of ordinary vehicular travel from the proposed
locations along the public thoroughfare to the nearest point of the exit gates of the college; and,
she reported a distance of two tenths of a mile (1056 feet). Agent Presnell also computed the
distance from the proposed locations to Trident Technical College by following the shortest route
of pedestrian travel, walking from the entrances of the proposed locations across the street to the
exit gates of the college; and, she reported a distance of 330 feet by pedestrian travel.
11. Other businesses in the direct vicinity of the proposed locations include: a carpet
wholesale company, Love's Mobile Homes, Stitches of Elegance, American Cycle, Luke's
Kawaski, and New York Carpet.
12. Vestal McCarty, a competitor in the retail liquor industry, testified in opposition to
the issuance of a beer and wine permit and a retail liquor license citing oversaturation and the
proximity of the proposed locations to Trident Technical College as reasons for his opposition.
Mr. McCarty owns a retail liquor outlet which has been licensed since February 7, 1994 and is
located at 6550 Rivers Avenue, approximately five-tenths (.5) of a mile from the proposed
locations. Mr. McCarty testified that there are two additional retail liquor outlets in existence
along Rivers Avenue less than a mile away from the proposed locations.
13. The proposed location, 6972-A Rivers Avenue, has been licensed to sell beer and
wine since 1980; and, the other location, 6972-B Rivers Avenue, has been licensed to sell liquor
since 1982. Meredith Going, the former owner and manager of both locations, held a license to
sell beer and wine at 6972-A Rivers Avenue and a license to sell liquor at 6972-B Rivers Avenue
from October 1990 until June, 1995. Ram Pandey, the petitioner's father, held a license to sell
beer and wine at 6972-A Rivers Avenue and a license to sell liquor at 6972-B Rivers Avenue from
July 1983 to October 1990. Also, John Colite held a license to sell liquor at 6972-B Rivers
Avenue from 1982 to 1983; and, in 1980, Larry Duncan held a beer and wine permit at 6972-A
Rivers Avenue.
14. Petitioner's father, Ram Pandey, owns the proposed locations.
15. Petitioner has not had a beer and wine permit or other license revoked within two
(2) years prior to the date of making application and petitioner has not had a license for the sale or
manufacture of alcoholic liquors revoked within the five (5) year period preceding the filing of the
application.
16. The State Law Enforcement Division ("SLED") completed a criminal background
investigation of petitioner. The SLED report revealed no criminal violations. Petitioner has not
engaged in acts or conduct that imply the absence of good moral character.
17. Petitioner will operate and manage the two (2) businesses.
18. Petitioner is at least 21 years of age, a U.S. citizen, a citizen of the State of South
Carolina, and has maintained his principal residence in the state for at least thirty (30) days prior
to the date of making application for an on-premises beer and wine permit and the retail liquor
license.
19. No one in petitioner's household currently holds a retail liquor license.
20. Notice of the application appeared in The Post and Courier, a newspaper of
general circulation in the area of the proposed location, for three (3) consecutive weeks and
notice was posted at the proposed location for fifteen (15) days.
21. The Department was present at the hearing, but did not oppose the issuance of a
beer and wine permit or the issuance of a retail liquor license to petitioner.
22. No official of Trident Technical College protested petitioner's application.
CONCLUSIONS OF LAW AND DISCUSSION
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
1. S.C. Code Ann. § 61-1-55 (Supp. 1994) and Chapter 23 of Title 1 of the 1976
Code, as amended, authorizes the South Carolina Administrative Law Judge Division to hear this
case.
2. S.C. Code Ann. § 61-9-320 (Supp. 1994) establishes the criteria for the issuance
of a beer and wine permit.
3. S.C. Code Ann. §§ 61-3-420, et seq. (Supp. 1994) establishes the criteria for the
issuance of a retail liquor license.
4. The only issue in dispute is the suitability of the proposed locations.
5. 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. South Carolina ABC Comm'n,
281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6. 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); Schudel v. South Carolina ABC Comm'n, 276
S.C. 138, 276 S.E.2d 308 (1981).
7. The intervenor alleges that the proposed locations are unsuitable because of the
proximity of the proposed locations to Trident Technical College. S.C. Code Ann. § 61-3-440
(Supp. 1994) dictates that a retail liquor store located within a municipality must be a minimum of
three hundred (300) feet from any church, school, or playground. 23 S.C. Code Ann. Regs. 7-11
(1976) provides the method for measuring the distances referred to in S.C. Code Ann. § 61-3-440. S.C. Code Ann. § 61-3-440 (Supp. 1994) does not conflict with 23 S.C. Code Regs. § 7-11. See 1990 Op. S.C. Att'y Gen. No. 90-40 at 127. No church, school or playground is within
the prescribed proximity to render the proposed retail liquor location unsuitable.
For purposes of a liquor license, S.C. Code Ann. § 61-3-440(2) (Supp. 1994) defines
"school" as an "establishment, other than a private dwelling where the usual processes of
education are usually conducted." This definition of "school" does not expressly include or
exclude colleges or universities. However, in 1976, the South Carolina Attorney General opined
that the term "school" in § 4-33.1(2) of the 1962 Code of Laws of South Carolina [which is
virtually identical to S.C. Code Ann. § 61-3-440(2) (Supp. 1994)] does not include a college or
university. 1975-76 Op. S.C. Att'y Gen. No. 4494 at 351.(1)
Furthermore, the term "school" in accordance with the longstanding policy of the
Department has been interpreted not to include a college or university. At the hearing of this
matter, the Department indicated that its longstanding policy was not to include colleges or
universities within the meaning of the term "school" in S.C. Code Ann. § 61-3-440 (Supp. 1994).
The construction of a statute by the agency charged within its administration will be accorded
the most respectful consideration and will not be overruled absent compelling reasons. Captain's
Quarters v. S.C. Coastal Council, 306 S.C. 488, 413 S.E.2d 13 (1992); Shasta Beverages v.
South Carolina Tax Comm'n, 280 S.C. 48, 310 S.E.2d 655 (1983); Faile v. South Carolina
Employment Security Comm'n, 267 S.C. 536, 230 S.E.2d 219 (1976). Additionally, there has
been a longstanding statutory prohibition concerning the proximity of a retail liquor establishment
to a church, school, or playground in South Carolina. Nonetheless, the proposed locations in
question have been licensed by the Department to sell alcoholic beverages since 1980, all the
while Trident Technical College has been at its present location.
There is no South Carolina case law determining whether the term "school" includes
colleges or universities under the Alcoholic Beverage Control Act. In looking to other
jurisdictions, research of this issue reveals that, of the few decisions directly on point, courts have
not used a consistent method to determine if the term "school" includes colleges or universities.
Courts have used legislative intent, definitions within the alcohol and beverage statutes, and the
function of the property close to the retail liquor establishment to determine if the term "school"
includes colleges or universities. For example, in Granger v. Lorenzen, 28 S.D. 295, 133 N.W.
259 (1911), the Supreme Court of South Dakota looked at the legislative intent of the alcohol and
beverage statute in question and concluded that a business college was not intended to be
included within the meaning of the term "school" as used in the statute. However, a Louisiana
court looked at the legislative intent of the alcohol and beverage statute and held that since the
statute excluded "business schools and colleges" the statute must have meant to include all other
colleges. Xavier University v. Thigpen, 151 So.2d 550 (La. App. 1963). In Regents of
University of New Mexico v. Hughes, 838 P.2d 458 (N.M. 1992), the Supreme Court of New
Mexico held that the University of New Mexico is a school, but for the purpose of prohibiting a
licensed premises within 300 feet of a school, one must look at the function of the property that is
within the 300 feet to determine if that property is used for school purposes. In the instant case,
the General Assembly did not express an intent to include colleges or universities within the
definition of "school."
Based upon (1) the longstanding interpretation of S.C. Code Ann. § 61-3-440 by the
Department, (2) a lack of specific language in the statute including colleges or universities within
the definition of "schools," (3) the history of the location with regard to previous alcohol beverage
licenses and permits, and (4) the interpretation in an Attorney General's Opinion of the term
"school," under the Alcoholic Beverage Control Act, which states the term "school" is not to
include colleges or universities, this tribunal concludes that Trident Technical College is not a
"school" within the context of S.C. Code Ann. § 61-3-440 (Supp. 1994). Therefore, the
proximity of the proposed locations to Trident Technical College is of no significance in the
instant case.(2)
8. In determining whether a proposed location is suitable, it is also proper for this
tribunal to consider any evidence that shows adverse circumstances of location. Smith v. Pratt,
258 S.C. 504, 189 S.E.2d 301 (1972); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246,
317 S.E.2d 476 (Ct. App. 1984). There has been no evidentiary showing that the present location
is unsuitable or that the issuance of an on-premises beer and wine permit or retail liquor license
would have an adverse impact on the surrounding community.
9. The intervenor also opposes the application on the basis of oversaturation of retail
liquor outlets in the area of the proposed locations. The intent of the General Assembly from a
reading of S.C. Code Ann. §§ 61-3-730 and 61-3- 480 was not to ensure economic viability of
businesses already licensed, but to safeguard the public health, safety, and welfare. Mr. McCarty's
assertion that the issuance of the permit and license in question would cause oversaturation is
based on the economic viability of his business, not public safety, health or welfare. Furthermore,
the proposed locations have previously been licensed to sell alcoholic beverages since 1980,
whereas the intervenor's retail liquor establishment has been licensed for the sale of alcoholic
beverages at 6550 Rivers Avenue since February 7, 1994. This tribunal does not find the
proposed locations unsuitable pursuant to S.C. Code Ann. §§ 61-3-730 and 61-3-480.
10. The proposed locations are suitable and proper, in light of the past history of the
locations and the existence of other licensed locations in the vicinity.
11. Petitioner meets the substantive statutory requirements for the issuance of a beer
and wine permit and a retail liquor license.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department grant Alok Pandey of Pandey, Inc., d/b/a Party Pop
Shop, an on-premises beer and wine permit for 6972-A Rivers Avenue, North Charleston, South
Carolina upon payment of the required fee(s) and cost(s) by the petitioner.
IT IS FURTHER ORDERED that the Department grant Alok Pandey of Pandey, Inc.,
d/b/a One Stop Liquor, a retail liquor license for 6972-B Rivers Avenue, North Charleston, South
Carolina upon petitioner presenting "to the Department a signed statement from the Department
and the IRS showing [petitioner] does not owe the state or federal government delinquent taxes,
penalties or interest," in compliance with S.C. Code Ann. § 61-3-425 (Supp. 1994).
AND IT IS SO ORDERED.
____________________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
September 26, 1995
1. Ironically, this opinion was requested by Kenneth E. Allen, who was the Director of the
South Carolina Alcoholic Beverage Control Commission at the time of the request.
2. Nonetheless, Trident Technical College is not within 300 feet of the proposed locations
by pedestrian or vehicular travel as proscribed by S.C. Code Ann. § 61-3-440 (Supp. 1994). |
