SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§61-2-90 (Supp. 1997) and S. C. Code Ann. §§1-23-310 et seq. (1986 and Supp. 1997) for a contested case hearing. The Petitioner, Nathan M. Wolfe, seeks a retail liquor license for Kroger. The South Carolina Department of Revenue (Department) made a Motion to be Excused stating that but for the protest of this application, the Department would have issued the license. The Department's Motion was granted by my Order dated January 19, 1998. A hearing was held March 30, 1998, at the Administrative Law Judge Division.

Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into consideration the burden of persuasion by the Petitioner and Protestants, I make the following Findings of Fact by a preponderance of evidence:

1. Notice of the time, date, place and subject matter of the hearing was given to the Petitioner, Protestants, and South Carolina Department of Revenue.

2. The Petitioner seeks a retail liquor license for Kroger (Spring Valley Kroger) at 10136A, Two Notch Road, Columbia, South Carolina.

3. The qualifications set forth in S. C. Code Ann. §61-6-110 (Supp. 1997) concerning the residency and age of the Petitioner are properly established. Furthermore, the Petitioner has not had a permit or license revoked within the last five years and notice of the application was lawfully posted both at the location and in a newspaper of general circulation.

4. The proposed location is not within 500 feet or unreasonably close to any church or playground.

5. No other member of Petitioner's household has been issued a retail liquor store license.

6. The Petitioner has not been issued more than three retail dealer licenses, nor does he have an interest, financial or otherwise, in more than three retail liquor stores.

7. The Protestants object to the issuance of a permit to the Petitioner for the following reasons:

a) Granting the permit could result in the sale of retail liquor to Spring Valley High School students.

b) Granting the permit could result in inappropriate behavior by Spring Valley High School students in the parking area outside the location.

c) Granting the permit could result in increased criminal behavior by the residents of a nearby apartment complex.

d) Granting the permit so close to Spring Valley High School sends the wrong symbolic message of the acceptance and availability of alcohol to the students.

8. The Petitioner is Zone Operations Manager for the Kroger Company. Kroger has 23 stores in his zone that sell beer and wine, 22 of which are located in South Carolina. Additionally, Kroger operates two retail liquor stores in South Carolina. One retail liquor store is located at Fort Jackson Boulevard, Columbia, South Carolina. The other Kroger retail liquor store is located in Irmo, South Carolina, across from an elementary school. The Petitioner has not experienced any problems within the last five years concerning the Alcoholic Beverage Control Act at either of these stores. By all accounts the establishments are well-managed and will continue to be well-managed. 9. The Protestants contend that the proposed location is unsuitable because granting the permit could result in the sale of retail liquor to Spring Valley High School students. Specifically, the Protestants argue that Spring Valley High School students could get individuals who are old enough to buy liquor to unlawfully purchase liquor for the students from the proposed location. If that logic is applied without any evidence indicating the Petitioner's propensity to commit such an act, it must be applicable in all license and permit applications. Since the above unlawful act could occur as the result of every sale of beer, wine or alcohol, no license or permit would ever be granted in South Carolina. I therefore do not find this argument a proper reason to deny the suitability of a proposed location.

Additionally, the Petitioner's store has a policy of immediately terminating an employee who sells, or attempts to sell, liquor to an underage person. Furthermore, the Petitioner's business utilizes a computerized cash register that requires that an employee operating the register enter the date of birth of everyone to whom a sale is made. A video camera records the front of the face of the person and the cash register during all sales made at the Petitioner's business. The tape is maintained for 30 days. Moreover, the Petitioner has not experienced any problems concerning the sale of alcoholic beverages to underage persons at either of his other two retail liquor stores.

10. The Spring Valley Kroger is located in a commercial area of Richland County. There are three locations that sell beer and wine in the immediate area of the proposed location. Directly beside the proposed location is a Kroger grocery store which holds an off-premise beer and wine permit. Across Sparkleberry Road is a shopping center in which Publix grocery store and Schianos are located. Publix holds an off-premise beer and wine permit and Schianos holds an on-premise beer and wine permit. Both of these businesses are closer to Spring Valley High School than the proposed location. The Protestants elected not to protest any of the above locations in the immediate area of the proposed location. I find that 10136A, Two Notch Road is a suitable area for a retail liquor store.

11. The Protestants also contend that granting the license could result in inappropriate behavior by Spring Valley High School students outside the location. Their argument is based both upon speculation surrounding the existence of an outdoor eating area at the Kroger Grocery store and events that occurred in the parking areas of Schianos and Publix. However, there is no evidence: a) that those events were related to the consumption of beer, wine or alcohol, or b) that similar events have occurred or would occur in the parking area of the proposed location. Moreover, the Petitioner stipulated that he would remove the outdoor dining area from the Kroger Grocery store to prevent Spring Valley High School students from being attracted to the proposed location.

The Protestants further contend that granting the permit could result in increased criminal behavior by the residents of a nearby apartment complex. That contention presumes, without any evidentiary support, that the residents of an apartment complex in a rural area of Richland County will commit more criminal behavior simply because a retail liquor store is opened approximately one-half (½) mile from the apartment complex. There is no evidence to establish that this store will supplant a void of liquor at that apartment complex and therefore increase the criminal behavior of the residents.

There is simply no direct evidence to indicate that the proposed location will be a source of any law enforcement or safety problems in the area, nor is there sufficient evidence to find that the well-being of the surrounding vicinity would be jeopardized by the issuance of the license. The Petitioner's other locations are currently properly managed, and the evidence does not suggest that the operation of the proposed location under Petitioner's management will differ from his other operations. Likewise, Schianos, which holds an on premise beer and wine permit practically abutting the school, was characterized as an "excellent neighbor" by one Protestant. As one Protestant agreed, the bottom line is that if this store is operated properly there will not be a negative impact upon the school. Furthermore, the Petitioner stipulated that he would remove the outdoor eating area at the Kroger grocery store that the Protestants assert would attract students to be near the proposed location. I therefore find the proposed location is suitable for a retail liquor license.

12. The Protestants contend that the this location is not suitable because the "red dots" upon the store symbolically represents the acceptance and availability of alcohol to the Spring Valley High School students. The Protestants believe that a certain line needs to be drawn and that a retail liquor store at the proposed location is simply an encroachment of a dangerous substance too close to Spring Valley High School. The Protestants, themselves, presented evidence that there are several retail liquor stores in the area. Those stores, and most likely many other stores, expose the students to the availability of alcohol. In fact, the proposed location would not be visible from the campus of Spring Valley High School. It would be visible only from the roadways of Two Notch and Sparkleberry and the Kroger shopping center, itself.

I wish that I could issue a Decision that would insure that no underage person would be improperly exposed to alcohol. However, that is simply not possible. While I recognize the Protestants' concerns regarding the tragedies that have occurred to students as a result of alcohol, this location has several stores that already sell beer and wine. Furthermore, I do not find that the visual impact of this proposed location will be of any greater significance than other retail liquor stores in the area. Under the rules of law that I must follow, I do not find sufficient evidence to support the proposition that this proposed location will adversely affect the community. See, Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

13. Ms. Sikes, who owns a competing retail liquor store in the area, testified that there is an adequate number of retail liquor stores in the area to service the population. She contends that if the Petitioner's store is opened it would economically harm the other retail liquor stores in the area. In other words, her argument is that issuance of the license to the proposed location would cause over saturation which in turn would endanger the economic viability of Ms. Sikes' business. I find that the evidence did not sufficiently establish that there are too many retail stores to safeguard the public health, safety, and welfare of the citizens who live in the area

14. Ms. Sikes also argued that the Petitioner was not of sufficient character to receive a retail liquor license because the Spring Valley Kroger grocery store, for whom the Petitioner holds the beer and wine permit, stocked the store with beer and wine before Kroger received a permit for the location. Ms. Sikes' contentions were based upon hearsay and were not supported by any direct evidence. In fact, she testified that she did not know when the Spring Valley Kroger grocery store received its permit. Furthermore, the Protestants did not establish that even if Ms. Sikes' contentions were true that the Petitioner's actions were unlawful. I find that the Petitioner has no criminal record and is of sufficient reputation to receive a retail liquor license.

15. The Protestants contend that the location is within 500 feet of Spring Valley High School and therefore statutorily barred from receiving a retail liquor license. Based upon the legal reasoning below, I find that following the lawful route of "ordinary" pedestrian travel to the first entrance to the proposed location, the proposed location is approximately 1,100 feet away from the grounds of the school. Furthermore, following the route of "ordinary" vehicular travel to the first entrance to the proposed location, the proposed location is 472 feet away from the school. Therefore, using the "shortest route of . . . travel along the public thoroughfare from the nearest point of the grounds in use" at the school, the nearest entrance is 472 feet from the entrance to the proposed location.

In this case, the petitioner seeks approval of the suitability of the location before committing the money to construct the retail liquor store. The Petitioner stipulated that if the location is determined to be suitable, he would ensure that the entrance to the proposed location is greater than 500 feet from the point this Court determines is the entrance to the grounds of the school in accordance with S.C. Code Regs. § 7-55 (1976).

16. The Petitioner's proposed location does not yet comply with the distance requirements of S.C. Code Ann. §61-6-120 (Supp. 1997).

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

1. S.C. Code Ann. § 1-23-600 (Supp. 1997) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C. Code Ann. § 61-2-260 (Supp. 1997) grants the Administrative Law Judge Division the responsibilities to determine contested matters governing alcoholic beverages, beer and wine.

3. S.C. Code Ann. §§ 61-6-110, et seq. (Supp. 1997) sets forth the requirements for

determining eligibility for a retail liquor license.

4. S.C. Code Ann. § 61-6-120 (Supp. 1997) provides that:

The department shall not grant or issue any license provided for in this article or Article 7 of this chapter, if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or 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 Regs. § 7-55 (1976) seeks to clarify the distance and how it will be measured by the following language:

With respect to a church or a school, the distance shall be measured from the nearest entrance of the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds of the church or school, or any building in which religious services or school classes are held, whichever is the closer. The Alcoholic Beverage Control Commission has determined that the grounds in use as part of the church or school is restricted to the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or buildings and does not extend to the grounds surrounding the church which may be used for beautification, cemeteries, or any purpose other than such part of the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings. Only one entrance to the grounds of a church or school shall be considered, to wit: the entrance to the grounds nearest an entrance to the church or school building. Where no fence is involved, the nearest entrance to the grounds shall be in a straight line from the public thoroughfare to the nearest door.

(Emphasis added). This statute and regulation provide that two different measurements, pedestrian and vehicular travel, shall be made to determine if the location is statutorily barred from receiving a retail liquor license. The shortest measurement is the applicable measurement. The Protestants contend that the measurement for "ordinary" pedestrian travel means the route of travel that pedestrians take even if that route is "jaywalking," and therefore illegal. Thus, if the behavior in this area is "ordinarily" illegal that behavior determines the legal standard for "ordinary." However, a statute must receive a practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of the legislature. D.W. Flowe & Sons, Inc. v. Christopher Const. Co., ___S.C. ___, 482 S.E.2d 558 (1997). Furthermore, a court must avoid construing a statute so as to lead to an absurd result. State v. Tisdale, 321 S.C. 153, 467 S.E.2d 270 (Ct. App. 1996). I do not believe that the General Assembly intended that illegal acts, even if those acts are the norm for the area, be used in determining ordinary pedestrian travel. I likewise do not intend to interpret "good repute" as including nefarious individuals simply because the "ordinary" person in the area of the proposed location is a similar-type person. See, S.C. Ann. § 61-6-110 (Supp. 1997) (qualifications for a retail liquor license).

Additionally, the Protestants contend that the location is too close to the school utilizing the vehicular route. The primary rule of statutory construction is to ascertain and effectuate the intent of the legislature. Plyler v. Evatt, 313 S.C. 405, 438 S.E.2d 244 (1993). In determining the intent of the legislature, a court should give the words used in a statute their plain and ordinary meaning. Mid-State Auto Auction of Lexington, Inc. v. Altman, ___S.C.___, 476 S.E.2d 690 (1996). Regulation 7-55 first sets forth that the "nearest point of the grounds in use" language of Section 61-6-120 means the "entrance" to the "nearest point" of the grounds. After the regulation defines grounds, it sets forth that the only entrance that shall be considered is the "nearest an entrance to the church or school building." However, if the grounds are not separated by a fence, the "nearest point" of entrance is "a straight line from the public thoroughfare to the nearest door." The "nearest doorway" is a point of reference to ascertain the nearest entrance. The Regulation does not call for a measurement to the doorway, itself, but simply a measurement to where a perpendicular straight line from the doorway intersects the public thoroughfare. In this case, that perpendicular straight line intersects the roadway at a distance of 472 feet from the doorway as currently configured by the applicant.

A location may still be found to be unsuitable even if the minimum distance requirements provided for in S.C. Code Ann. § 61-6-120 (Supp. 1997) are not applicable. However, the Court must not make decisions based merely upon opinion and speculation. In this case, the evidence does not support a denial of the Petitioner's license.

5. The Protestants also contend that the retail liquor license should be denied because there is an over saturation of retail liquor outlets in the area of the proposed location. S.C. Code Ann.§ 61-6-170 provides that "[t]he department may, in its discretion, limit the further issuance of retail dealer licenses in a political subdivision if it determines that the citizens who desire to purchase alcoholic liquors therein are more than adequately served because of (1) the number of existing retail stores, (2) the location of the stores within the subdivision, or (3) other reasons." Again, in interpreting a statute, a court must first determine the intent of the legislature. Plyler, supra. The intent of the General Assembly in enacting Section 61-6-170 was not to ensure economic viability of businesses already licensed in the area, but to safeguard the public health, safety, and welfare of the citizens who live in the area. See, Alok Pandey, Pandey, Inc., d/b/a Party Pop Shop/One Stop Liquor v. South Carolina Department of Revenue and Taxation, and Vestal McCarty, Docket No. 95-ALJ-17-0527-CC. There is no evidence that establishes that the public safety, health or welfare is endangered by the issuance of a license in this case because of a plethora of retail liquor stores. Therefore, the proposed location is not unsuitable pursuant to Section 61-6-170.

6. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

7. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed business location of a Petitioner for a permit or license using broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

8. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operations of the proposed business and its impact upon the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

9. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not a sufficient reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995); 48 C.J.S. Intoxicating Liquors § 119 (1981).

10 In considering the suitability of a location, it is relevant to consider the previous history of the location and to determine whether the testimony in opposition to the granting of a permit is based on opinions, generalities and conclusions or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, (1972); Taylor v. Lewis, et al. , 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, there are several locations in the area that hold beer and wine permits. In fact, as noted above, both Schianos and Publix are closer to Spring Valley High School than the proposed location. The Protestants elected not to protest any of the other locations in the immediate area of the proposed location. Furthermore, the contentions of the Protestants that: a)granting the permit could result in the sale of retail liquor to Spring Valley High School students, and b)granting the permit could result in increased criminal behavior by the residents of a nearby apartment complex are based upon the speculation of these potentialities. The contention that granting the permit could result in inappropriate behavior by Spring Valley High School students outside the location is based upon both speculation and events that occurred in the parking areas of Schianos and Publix. There is no evidence that those events were related to the consumption of beer, wine or alcohol. Moreover, the Petitioner stipulated that he would remove the outdoor dining area from the Kroger Grocery store to prevent Spring Valley High School students from being attracted to the parking area of the location.

11. The Petitioner meets the statutory requirements for holding a retail liquor license at the proposed location.

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Petitioner and Protestants will meet with SLED agent Joe Dorton to determine the measurement from the entrance of the proposed location to the entrance to the grounds of the school as set forth above to ensure that the relocated door of the location is greater than 500 feet from the entrance to the school grounds. This Court shall retain jurisdiction of this case to review the accuracy of that measurement.

IT IS FURTHER ORDERED that following the Petitioner's compliance with the above measurement and the structural requirements of Section 61-6-1510, and upon the Petitioner signing a written Agreement with the South Carolina Department of Revenue agreeing to remove the outdoor eating area at the Kroger grocery store, the retail liquor license application of Nathan M. Wolfe, II, for Kroger be granted.

AND IT IS SO ORDERED.

________________________________

Ralph King Anderson, III

Administrative Law Judge

May 13, 1998

Columbia, South Carolina