SC Administrative Law Court Decisions

The Petitioner, Alvin Q. Poyner (Poyner) of Little Mountain, South Carolina filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for a retail liquor license for 1345 Dutch Fork Road, Ballentine, South Carolina. Protests with DOR were filed seeking to prevent the granting of the license. Section 23 S.C. Code Regs. 7-46 (1976) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) pursuant to S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1996). The evidence and relevant factors require granting the license.

Does Poyner meet the requirements for a retail liquor license?

III. Analysis

1. Positions of Parties:

Poyner asserts he meets all requirements. DOR states that the filing of a protest prevents the granting of the license until a hearing is held and thus, DOR awaits the outcome of that hearing. The protestants assert only one basis for denying the license: a sufficient number of licenses have already been issued in the Ballentine community.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about September 10, 1996, Poyner filed an application with the Department of Revenue for a retail liquor license.

2. The application is identified by DOR as AI 110796.

3. The proposed business location and the place where the retail liquor license will be utilized is 1345 Dutch Fork Road, Ballentine, South Carolina.

4. Protests to the application were filed by several individuals.

5. Except for the unresolved issue of whether a sufficient number of licenses have already been issued in the Ballentine community, DOR would have issued the license.

6. A hearing on the issue was held February 24, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

b. Applicant and Number of Licenses

7. Poyner seeks a retail liquor license in his name.

8. Poyner holds two other retail liquor licenses.

9. No other member of the Poyner household holds a liquor license.

c. Age

10. Poyner's date of birth is May 3, 1965.

11. Poyner is over twenty-one years of age.

d. Legal Resident and Principal Place of Abode

12. Poyner has resided in South Carolina since 1970.

13. Poyner holds a valid South Carolina driver's license.

14. Poyner currently resides at 42 Doe Drive, Little Mountain, South Carolina, and has resided in South Carolina for more than 30 days prior to filing the application for a retail liquor license.

15. Poyner is a legal resident of the United States and South Carolina, has held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

e. Good Repute and Suitable Person

16. The State Law Enforcement Division (SLED) investigated the applicant's criminal background.

17. The SLED report revealed no criminal violations.

18. The applicant's actions and conduct do not imply the absence of good repute nor the absence of being a suitable person.

19. The applicant is of good repute and is a suitable person.

f. Suitable Place of Location

20. No criminal activity has been reported at the proposed location.

21. The proposed location is not located within a municipality.

22. No churches, schools or playgrounds are within 500 feet of the proposed location.

23. In the immediate vicinity, beer and wine is sold under off-premises permits by a grocery store and by a gas station.

24. In the immediate vicinity, beer and wine is sold under on-premises permits by a restaurant and by a private club.

25. A retail liquor store is .5 of a mile from the proposed location.

26. A significant demand exists for a liquor store in the Ballentine area.

27. The landlord of the proposed location was approached by at least five potential tenants all seeking to establish a retail liquor store at the proposed location.

28. The 1500 square foot size of the proposed location will not provide an excess liquor supply in the Ballentine area.

29. The somewhat similar community of Chapin demonstrates that two retail liquor stores do not necessarily create excessive licenses even when in close proximity.

30. While the Chapin community is not identical to the Ballentine community, both are in the same general area and both provide a suburban and rural living area for residents in the Lake Murray area.

31. Chapin's two existing retail liquor stores operate in close proximity without creating an excessive number of liquor stores.

32. Growth is expected in the Lake Murray, Chapin, and Ballentine areas.

33. A second liquor store in the Ballentine vicinity will not create too many licenses for the area.

34. The location is adequately served by traffic routes of Dutch Fork Road and Bickley Road.

35. The proposed location is in a strip shopping center in a highly commercial area.

g. Delinquent Taxes

36. DOR has not asserted Poyner is delinquent in state or federal taxes, penalties, or interest.

37. Poyner is not delinquent in state or federal taxes, penalties, or interest.

h. Prior Revocation Of Liquor License

38. Poyner has never had a liquor license revoked.

i. Notice

39. Notice of the Poyner application was published in The State, a newspaper published and distributed in Richland County, with notice published on August 31, September 2 and 9, 1996.

40. Notice of the Poyner application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Ballentine.

41. Poyner gave notice to the public by displaying a sign for fifteen days at the proposed business.

42. Poyner gave notice of the application by the required advertising by newspaper and display of signs.

3. Discussion

The applicant satisfies the requirements of being of good repute and a suitable person, being a legal resident of South Carolina for 30 days, having a principal place of abode in South Carolina for 30 days prior to filing the application, not having had a license regulating the manufacture or sale of alcoholic liquors revoked within the prior 5 years, being at least twenty-one years of age, having a proper location, having no delinquent taxes, and providing proper notice of the application by way of newspaper and the display of signs. Rather, the only matter disputed is whether a sufficient number of liquor licenses have already been issued in the Ballentine community.

Under S.C. Code Ann. § 61-3-730 (3) (Supp. 1995), no liquor license may be granted if a sufficient number of licenses has already been issued in the community. The simple but controlling question is whether the granting of a second retail liquor store license within .5 of a mile of an existing liquor store will constitute too many licenses in the area.

Under the facts here, a second store .5 of a mile from the current location is not excessive. First, demand exists for a second location. The landlord testified a significant demand exists for a liquor store in the Ballentine area. In fact, in leasing the rental space, no fewer than five parties expressed a desire to rent the proposed location for the specific purpose of establishing a retail liquor store. Second, the size of the proposed location will not be so large as to provide an excessive liquor supply. Rather, the proposed location's size of 1500 square feet is relatively small. Third, the somewhat similar community of Chapin demonstrates that two retail liquor stores are not excessive based upon proximity. While the Chapin community is not identical to the Ballentine community, both are in the same general area and both provide a suburban and rural living area for residents in the Lake Murray area. Chapin's two existing retail liquor stores operate in proximity to each other without creating an excessive number of liquor stores. Given the expected growth of the Lake Murray, Chapin, and Ballentine areas, a second liquor store will not create too many licenses for the area.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. The applicant will not possess more than three licenses. S.C. Code Ann. § 61-3-460 (Supp. 1995).

2. The applicant will not have an indirect interest allowing him more than three retail liquor licenses. S.C. Code Ann. § 61-3-461 and 61-3-462 (Supp. 1995).

3. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-1-125(C) and 61-3-420 (Supp. 1995).

4. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-3-420 (Supp. 1995).

5. The applicant is of good repute and is a suitable person. S.C. Code Ann § 61-3-420 and 61-3-730 (Supp. 1995).

6. The applicant has not had a license regulating the manufacture or sale of alcoholic liquors revoked within 5 years of the filing of the application. S.C. Code Ann. § 61-3-420 (Supp. 1995).

7. The applicant does not owe DOR or the IRS delinquent state or federal taxes, penalties, or interest. S.C. Code Ann § 61-3-425 (Supp. 1995).

8. The proposed location is not within 500 feet of any churches, schools, or playgrounds. S.C. Code Ann §61-3-440 (Supp. 1995).

9. The existence of other similar businesses in the area is a factor in reviewing a license. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

10. A second liquor store in the Ballentine vicinity will not create too many licenses for the area. S.C. Code Ann § 61-3-730 (Supp. 1995).

11. Considering all relevant factors, the proposed location is a suitable location. S.C. Code Ann. § 61-3-730 (Supp. 1995).

12. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-3-490 (Supp. 1995).

13. The applicant meets the requirements for the issuance of a retail liquor license.

DOR is ordered to grant Poyner's application for a retail liquor store at 1345 Dutch Fork Road, Ballentine, South Carolina.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 25th day of February, 1997

Columbia, South Carolina