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, Judy A. Odom, seeks a retail liquor license for Judy's ABC Store. 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 May 26, 1998. A hearing was held July 23, 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 Judy's ABC Store at 302 E. Tatum Avenue, McColl, 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 Petitioner's husband currently holds a retail liquor license for another store in McColl. However, no other member of Petitioner's household has been issued a retail liquor store license.

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

6. Respondent Lee and the Protestant object to the issuance of a license to the Petitioner for the following reasons:

a) Granting the license would devalue their property;

b) Granting the license could result in traffic problems;

c) Granting the license would change the residential nature of the neighborhood;

d) Granting the license could result in increased criminal behavior by patrons of the nearby night clubs and the video poker establishment;

e) A school and a school bus stop are located near the proposed location;

f) A retail liquor store at the proposed location would violate the covenants of Wylie Acres; and

g) McColl already has a retail liquor store servicing the needs of the local residents.

7. The Petitioner and her husband purchased property on East Tatum Avenue and are building a small mini-mall comprising four stores. One of those stores would hold the proposed retail liquor store. East Tatum Avenue is a well-traveled street in the McColl area. The vicinity of the proposed location was previously a residential area but it is becoming more commercial. There are two businesses, "Casino" and "Shady Lady," that sell beer and wine on-premises in the immediate area of the proposed location. Both of these businesses are closer to the Respondent Lee's and the Protestant's residences than the proposed location. However, when the permittee of the "Shady Lady" recently applied for a permit neither Mr. Lee nor Ms. Wilkes filed a protest of the permit. Additionally, there are three businesses, "Nick Pick Quick," "Nolan Gulf Station" and "McColl Quick Stop," that hold an off-premise beer and wine permit.

8. The proposed location is not within 500 feet or unreasonably close to any school, church or playground. Furthermore, a school bus stop is 200 feet or more from the property of the proposed location. The bus stop is situated in front of the residential community from which the school children would depart and return. The proposed location would face the opposite direction of the bus stop. Furthermore, as required by S.C. Code Ann. § 61-6-1500 (Supp. 1997) the Petitioner cannot open her store until 9:00 a.m. Therefore, the proposed location is not unreasonably close to the bus stop.

9. The Protestant's argument that granting the license could result in an increase in criminal behavior by the patrons of nearby night clubs and a video poker establishment was supported by evidence that Ms. Wilkes has had problems in the past with intoxicated people who have come upon her property. However, Respondent Lee and the Protestant presume, without any evidentiary support, that the patrons of the nearby night clubs and the video poker establishment will commit criminal behavior simply because a retail liquor store is opened more than one-half (½) mile from those businesses. There is no evidence: a) that the events at Ms. Wilkes' home are related to the purchase of alcohol from a retail liquor store, or b) that similar events would occur as a result of granting a license for the proposed location.

10. 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 has not experienced any problems concerning the Alcoholic Beverage Control Act at her other location. The Petitioner's other location is also properly managed, and the evidence does not suggest that the operation of the proposed location under Petitioner's management will differ from her other operation. If this store is operated properly there will not be a negative impact upon the community. I therefore find the proposed location is suitable for a retail liquor license.

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

12. The Petitioner currently operates a retail liquor store with her husband at 113 Second Street in McColl. The Petitioner's store is the only retail liquor store in McColl. However, if granted this retail liquor license, the Petitioner stipulates that she will close her Second Street Store before she begins operating the proposed location. Therefore, there will not be two stores servicing the residents of McColl. 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.

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. . . .

5. 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." In interpreting a statute, a court must first determine the intent of the legislature. Plyler v. Evatt, 313 S.C. 405, 438 S.E.2d 244 (1993). 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.

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 whether the testimony in opposition to the granting of a license 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, the testimony of the Respondent and Protestants of a detriment to their community is conjectural and without any specific factual support.

11. The Respondent and Protestants request that this Court to deny Petitioner's license application, because of restrictive covenants in the Wylie Acres subdivision stating that there shall be "no night clubs, bars or dance halls" upon the property. However, the Division's jurisdiction in this matter is limited to a determination of whether the proposed location meets the criteria established by statute and case law. See Bazzle v. Huff, 319 S.C. 443, 462 S.E.2d 273 (1995) (an administrative agency has only the powers which have been conferred on it by law and must act within the authority created for that purpose). The circuit court, rather than the Division, is the proper forum in which to seek enforcement of restrictive covenants.

12. The Respondent and Protestant also request that this Court deny Petitioner's license application, because a retail liquor store at the proposed location would decrease their property values. The Respondent and Protestant are in essence asking this Court to effectuate zoning. The ultimate purpose of zoning is to confine certain classes of buildings and uses to certain localities and thereby protect the value of the zoned property. 101A C.J.S. Zoning and Land Planning § 101 (1979). Such authority is vested solely in the local government. Furthermore, other than their assertions that their property values would be decreased, the Respondent and Protestant offered no evidence to support their contention.

13. 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 retail liquor license application of Judy A. Odom for Judy's ABC Store be granted upon the Petitioner's compliance with the structural requirements of section § 61-6-1510 and the payment of the required fees and costs.

AND IT IS SO ORDERED.

________________________________

Ralph King Anderson, III

Administrative Law Judge

August 24, 1998

Columbia, South Carolina