SC Administrative Law Court Decisions

The Petitioner, Custer Enterprises, Inc., d/b/a Custers Last Stand, with a licensee of Carl W. Custer (Custer) of Little River, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for a renewal of a retail liquor store license for 293 Highway 90, Little River, South Carolina. George T. Samaha filed a protest seeking to prevent DOR from granting the license. The filing of such a protest requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. § 61-2-260 (Supp. 1998).

In this matter, not all of the requirements for obtaining a retail liquor license are disputed. No dispute exists on whether Custer exceeded three liquor licenses (§ 61-6-140), is at least twenty-one years old (§§ 61-2-100(B) and 61-6-110), is a legal resident (§ 61-6-110), is of good repute and a suitable person (§§ 61-6-110 and 61-6-910), has had any revocations or suspensions (§§ 61-6-110 and 61-2-140(E)), is delinquent in paying taxes (§ 61-2-160), or failed to provide proper notice (§ 61-6-180). Rather, the dispute concerns whether the location chosen by Custer is proper. Having heard the evidence, the renewal license must be granted.

Does Custer meet the statutory requirements for renewing a retail liquor license?

1. Positions of Parties:

Custer 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 protestant asserts that the proposed location is not proper.

2. Findings of Fact:

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

a. General

On or about April 1, 1999 Custer filed a license renewal application with DOR for a retail liquor store. The application is identified by DOR as AI 124496 and carries a business location of 293 Highway 90, Little River, South Carolina. A protest to the application was filed by George T. Samaha. Except for the unresolved suitability of location issue, DOR would have issued the license. To resolve the dispute over whether the location is proper, a hearing on the issue was held July 7, 1999, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

b. Suitability of Location

The current location has been operating since late 1998 and now seeks a renewal license due to the expiration in May of 1999 of its former license. During the operation under the former license, no evidence of criminal activity was reported and no violations of the liquor laws have occurred.

The location, not being within any municipal limits, does not provide the traffic controls associated with a municipality. However, the area is adequately served by the traffic route of Highway 90 and presents no significant concern to traffic safety.

The immediate area is commercial in nature and presents at least nine commercial establishments. One of the business establishments in the immediate area is a dance studio very near to the location sought by Custer. The activity of the studio consists of a commercial enterprise offering dance lessons to the general public. The studio operates both during daylight and early evening hours.

Further beyond the immediate area are churches and residences. Approximately six residences are within a 500 foot radius of the location with the closest residence being 314 feet from the location. Two churches are in the area, but both are at distances of approximately 1,000 feet from the location.

3. Conclusions of Law

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

The only matter disputed is whether the location is proper. Generally, two criteria dictate the appropriateness of the location of a retail liquor store: establishing the distance to churches, schools, and playgrounds and determining whether the location is suitable.

a. Distance to Church and School

The protestant argues the location is within 500 feet of a church and within 500 feet of a school. Based on these distances, the protestant asserts the renewal license must be denied. I cannot agree.

i. Distance Irrelevant

First, generally, a liquor license sought for use in a non-incorporated area cannot be granted if the location is within 500 feet of a church or school. S.C. Code Ann. § 61-6-120 (Supp 1998). However, the statute specifically states that "[such] restrictions do not apply to the renewal of licenses . . ." Id. Here, no dispute exists that the license being sought by Custer is that of a renewal license. Thus, in all events, the restrictions on distance to churches or schools set forth in § 61-6-320 do not warrant denying Custer's application.

ii. Measurement Not Violated

Second, even if distance were a relevant factor, the 500 foot rule is not violated in this matter. The two churches in the area, Grace Christian Worship and Open Door Full Gospel Church, are approximately 1,000 feet from Custer's location. The 1,000 foot distance is established by the investigation conducted by SLED. That distance is confirmed by a measurement established by a wheel-calibrated measuring device. The contrary evidence that the distance is less than 500 feet is that of an approximation. Thus, the more reliable measurement is 1,000 feet.

As to the distance to a school, no school is within 500 feet of the location. Rather, the "school" under review in this case is actually a "dance studio" and is not within the meaning of the statute. Under the statute, a "school" is "an establishment, . . . where the usual processes of education are usually conducted." S.C. Code Ann. § 61-6-120 (Supp. 1998). A "dance studio" has been traditionally held not to be an establishment where the usual processes of education are conducted. See 45 Am Jur Intoxicating Liquors § 142 (where "so-called schools for . . . giving instruction in dancing . . ." did not qualify as a school for purposes of establishing distances from liquor license locations). Indeed, merely establishing that teaching occurs at the location is not enough to prove that the location is an establishment where the "usual processes of education are usually conducted." See e.g. K & K Enterprises, Inc. v. Pennsylvania Liquor Control Bd., 602 A.2d 476, 480 (Pa. 1990) (where, since the primary role of the center was "child care in the absence of a parent or parents," a day care center was not a school even where the court found "[u]ndoubtedly, this day care center teaches children."). Moreover, a "school" is most likely not present if the activity provided at the establishment is primarily recreational instead of educational. See Surowitz v. City of Pontiac, 132 N.W.2d 628 (Mich. 1965) (where the court commented that a "school" may not be present if the activities "were not offered in contemplation of achieving mastery of a particular vocation, but were recreational in their outlook.").

Thus, in the instant case, the "dance studio" is not a school within the meaning of S.C. Code Ann. § 61-6-120 (Supp. 1998). The usual processes of education are not being conducted due to the fact that the primary purpose of the dance instruction is recreational and not educational. Accordingly, no 500 foot prohibition is applicable here.

b. Suitable Location

A second criteria for judging the appropriateness of the location of a retail liquor store is whether the location is a suitable location. S.C. Code Ann. § 61-6-910(2) (Supp. 1998). The suitable location issue 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). 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).

Here, a significant factor is the location's prior operating history as a retail liquor store from its inception in 1998. From that time, no significant incidents have occurred and nothing in the evidence indicates any problem with the location during that time period. Specifically, no evidence exists 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 immediate area is highly commercial with several retail businesses. Such an environment is not an improper setting for a retail liquor business. Accordingly, the applicant meets the requirements for the renewal of a retail liquor license.

DOR is ordered to grant Custer's application for a renewal of a retail liquor license at 293 Highway 90, Little River, South Carolina.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 13th day of July, 1999.

Columbia, South Carolina