South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Darron C. Thomas, d/b/a Thomas Package Store vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Darron C. Thomas, d/b/a Thomas Package Store

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0229-CC

APPEARANCES:
Henry Bufkin, Esq, for Petitioner

Arlene D. Hand, Esq., for Respondent, Excused from Appearance

Scott L. Bayer, Protestant
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Darron C. Thomas (Thomas) of Little Mountain, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for a retail liquor store license for 1016 Friend Street, Newberry, South Carolina. Scott L. Bayer filed a protest seeking to prevent DOR from granting the license. Section 23 S.C. Code Regs. 7-46 (Supp. 1996) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-1-55, 1-23-600(B) and 1-23-310 (Supp. 1996). The evidence and relevant factors require granting the license.

II. Issue


Does Thomas meet the statutory requirements for a retail liquor license?







III. Analysis

1. Positions of Parties:

Thomas asserts he meets all statutory 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: the proposed location is not proper.

2. Findings of Fact:

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

a. General

1. On or about February 27, 1997, Thomas filed an application with the Department of Revenue for a retail liquor store.

2. The application is identified by DOR as AI 113552.

3. The proposed business location and the place where the retail liquor license will be utilized is 1016 Friend Street, Newberry, South Carolina.

4. A protest to the application was filed by Scott L. Bayer.

5. Except for the unresolved suitability of location issue, DOR would have issued the license.

6. A hearing on the issue was held June 19, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

b. Applicant and Number of Licenses

7. Thomas holds no other liquor license.

8. No other member of the Thomas household holds a liquor license.

c. Age

9. Thomas' date of birth is May 4, 1965.

10. Thomas is over twenty-one years of age.

d. Legal Resident and Principal Place of Abode

11. Thomas has resided in South Carolina since 1972.

12. Thomas holds a valid South Carolina driver's license.

13. Thomas currently resides at Route 4, Box 235J, Leesville, South Carolina and has resided in South Carolina for more than 30 days prior to filing the application for a retail liquor store license.

14. Thomas 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

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

16. The SLED report revealed no criminal violations.

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

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

f. Suitable Place of Location

19. Prior owners of the existing location have operated as a retail liquor store for well over twenty-five (25) years.

20. The applicant will continue the same business as prior owners.

21. No criminal activity has been reported at the proposed location during prior periods of operation.

22. The proposed location is located within the city limits of Newberry.

23. The proximity to churches consists of Central Methodist Church at 385 feet, First Baptist Church at 527 feet, and Redeemer Lutheran Church at .2 of a mile.

24. The proposed location is not within an improper proximity to churches.

25. Businesses in the immediate vicinity hold permits to sell beer and wine.

26. Retail liquor stores operate on Drayton Street approximately .6 of a mile from the proposed location and on North Main Street approximately 1.4 miles from the proposed location.

27. The location is adequately served by traffic routes of the downtown area.

28. The proximity to residences consists of three residences ranging from 421 feet to approximately 500 feet from the proposed location.

29. The proposed location is not within an improper proximity to residences.

30. The area is highly commercial.

g. Delinquent Taxes

31. DOR has not asserted Thomas is delinquent in state or federal taxes, penalties, or interest.

32. Thomas is not delinquent in state or federal taxes, penalties, or interest.









h. Prior Revocation Of Liquor License

33. Thomas has never had a liquor license revoked.

i. Notice

34. Notice of the Thomas application was published in The Newberry Observer, a newspaper published and distributed in Newberry County, with notice published on February 24, March 3 and 10, 1997.

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

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

37. Thomas gave notice of the application by the required advertising by newspaper and display of signs.

3. Discussion

a. General Criteria

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 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 the location is proper.

Two criteria dictate the appropriateness of the location of a retail liquor store. First, if the proposed location is within a municipality, the location cannot be within 300 feet of any churches, schools, or playgrounds. S.C. Code Ann §61-6-120 (Supp. 1996). Second, before a retail liquor license can be granted the proposed location must be a suitable location. S.C. Code Ann. § 61-6-910(2) (Supp. 1996). Here, the 300 foot rule is satisfied since the nearest church is Central Methodist Church at 385 feet. The suitable location issue, on the other hand, is a highly factual determination.

In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Geography alone is not the sole suitability consideration, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

While not all inclusive, numerous location factors are considered. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). The impact of the proposed location upon traffic in the area can be a consideration. Palmer, supra. The character of the entire area as rural versus commercial may be considered. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). The proximity of the proposed location to children may also be considered. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). It is relevant whether there are already similar existing businesses in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Further, objections to the permit must be based upon adequate factual support. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

b. Basis For Decision

I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. I conclude the license must be granted.

A significant factor is the location's prior operating history as a retail liquor store for over twenty-five (25) years without any significant incident. Nothing in the evidence indicates any problem with the location during that time period, and in this instant case, the new owner will continue the former business. There is no evidence of criminal activity at the location nor of any traffic concerns at the location. Additionally, the distances to churches and residences are sufficient not to present a problem to conducting worship services or residential living. In fact the overall character of the area is highly commercial with numerous retail businesses. Such an environment is not an improper setting for a retail liquor business.

While the protestants expressed concern that vagrants will purchase liquor at the applicant's business and then litter neighboring properties with the used containers, I am unable to find that such a consequence is a sufficient basis for denying the license. I am persuaded from the demeanor of the applicant that he has no intention of fostering conditions that will contribute to littering in the area. Based upon a consideration of all of the evidence taken as a whole, the license must be granted.

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. § 61-6-140 (Supp. 1996).

2. The applicant will not have an indirect interest allowing him more than three retail liquor licenses. S.C. Code Ann. § 61-6-150 (Supp. 1996).

3. The applicant is at least twenty-one years old. S.C. Code Ann. §§ 61-2-100(C) and 61-6-110 (Supp. 1996).

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. § 61-6-110 (Supp. 1996).

5. The applicant is of good repute and is a suitable person. S.C. Code Ann §§ 61-6-110 and 61-6-910 (Supp. 1996).

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. § 61-6-110 (Supp. 1996).

7. The applicant does not owe DOR or the IRS delinquent state or federal taxes, penalties, or interest. S.C. Code Ann § 61-2-160 (Supp. 1996).

8. The proposed location is not within 300 feet of any churches, schools, or playgrounds. S.C. Code Ann §61-6-120 (Supp. 1996).

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. An additional liquor store in the Newberry vicinity will not create too many licenses for the area. S.C. Code Ann § 61-6-910 (Supp. 1996).

11. Considering all relevant factors, the proposed location is a suitable location. S.C. Code Ann. § 61-6-910 (Supp. 1996).

12. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-6-180 (Supp. 1996).

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



IV. ORDER


DOR is ordered to grant Thomas's application for a retail liquor store at 1016 Friend Street, Newberry, South Carolina.

IT IS SO ORDERED.



____________________________

RAY N. STEVENS

Administrative Law Judge

This 23rd day of June, 1997.

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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