ORDERS:
ORDER
I. STATEMENT OF THE CASE
JoJak, LLC, d/b/a Harvard's Discount Beer & Wine, also d/b/a Harvard's (JoJak) filed with the South Carolina Department
of Revenue (DOR) an application for an off-premises beer and wine permit and a retail liquor license for 24 Park Woodruff
Road, Greenville, South Carolina. Protests were filed by Louanne Bettis and Terry Kiefer, both seeking to prevent DOR
from granting this application.
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600, (Supp. 1998);
61-4-520 (Supp. 1998); 61-6-1510 (Supp. 1998); 12-60-1310 (Supp. 1998); and 12-60-1320 (Supp. 1998) for a contested
case hearing. A hearing was held on September 17, 1999 at the Administrative Law Judge Division. The Protestants did not
move to intervene.
In this matter, DOR denied the Petitioner's application because the location did not meet the structural requirements of S.C.
Code Ann. § 61-6-1510 (Supp. 1998) because the structure had not been constructed. DOR also denied the Petitioner's
application because of public protest pursuant to S.C. Code Ann. § 61-6-185 (Supp. 1998). Upon review of the relevant and
probative evidence and applicable law, I find the proposed location suitable and hereby order the DOR to grant the
application for an off-premises beer and wine permit and a retail liquor license, upon compliance by the Petitioner with the
structural requirements of S.C. Code Ann. § 61-6-1510 (Supp. 1998).
II. ISSUE
Does the Petitioner meet the requirements for an off-premises beer and wine permit and a retail liquor license?
III. ANALYSIS
1. Positions of the Parties:
The Petitioner asserts it meets all the statutory requirements for obtaining an off-premises beer and wine permit and a retail
liquor license, with the exception of the structural requirements of S.C. Code Ann. § 61-6-1510. DOR states that it would
have granted the permit and licence but for the public protests and the Petitioner's failure to satisfy the structural
requirements. The Protestants assert only one basis for denying the applications: a sufficient number of licenses have been
issued in the community surrounding the proposed location.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
a. General
1. On or about February 23, 1999, JoJak filed an application with DOR for an off- premises beer and wine permit and a
retail liquor license.
2. The application is identified by DOR as AI 127249 (beer and wine) and AI 127250 (Retail liquor license).
3. The proposed business location and the place where the off-premises beer and wine permit and the retail liquor license
will be utilized is 24 Park Woodruff Road, Greenville, South Carolina.
4. Protests to the application were made by Louanne Bettis and Terry Kiefer.
5. Except for the structural issues and the unresolved question of whether a sufficient number of licenses have already been
issued to the community, DOR would have issued the permit and license.
6. A hearing on the issues was held on September 17, 1999, with notice of the date, time, place, and subject matter of the
hearing given to the Petitioner, DOR, and the Protestants.
b. Suitable Place or Location
7. No criminal activity has been reported at the proposed location.
8. No churches, schools, or playgrounds are located within 500 feet of the proposed location.
9. A retail liquor store is located 3/10 of a mile from the proposed location.
10. The proposed location has not been constructed.
11. The Petitioner's proposed location does not yet comply with the structural requirements of S.C. Code Ann. § 61-6-1510.
c. Prior Revocation of Permit or License
12. JoJak has never had a permit or license revoked.
d. Notice
13. Notice of the JoJak application was published in The Greenville News, a newspaper published and distributed in
Greenville County, with notice published on March 19, March 22, and March 29, 1999.
14. Notice of the JoJak application appeared at least once a week for three consecutive weeks in a newspaper most likely to
give notice to interested citizens in Greenville.
15. JoJak gave notice to the public by displaying a sign for fifteen days at the proposed location.
16. JoJak gave notice of the application by the required advertising by newspaper and display of signs.
3. Conclusions of Law
Based upon the Findings of Fact, I conclude as a matter of law the following:
1. The applicant gave proper notice of the application by way of publications in the newspaper and the required display of
signs. S.C. Code Ann. §§ 61-6-180 and 61-4-520 (Supp. 1998).
2. S.C. Code Ann. § 61-6-170 (Supp. 1998) 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, 458 S.E.2d 244 (1993). The intent of the General Assembly in enacting Section
61-6-170 was not to ensure economic viability to businesses already licensed, but rather 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, Docket No. 95-ALJ-17-0527-CC. There is no evidence in the record
which establishes that the public safety, health or welfare is endangered by the issuance of a license in this case because of
a plethora of liquor stores.
3. 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).
4. 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 license or permit using broad, but not unbridled, discretion. Byers v. South Carolina
ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5. The determination of the suitability of a 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 located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
6. 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).
7. 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).
8. Considering all relevant factors, the proposed location is a suitable location. S.C. Code Ann. §§ 61-4-520 and 61-6-1820 (Supp. 1998).
IV. ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the South Carolina Department of Revenue grant the Petitioner's off-premises beer and wine permit and
retail liquor license upon the Petitioner's compliance with the structural requirements of S.C. Code Ann. § 61-6-1510 (Supp.
1998) and the payment of the required fees and costs.
AND IT IS SO ORDERED.
_______________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
September 27, 1999
Columbia, South Carolina. |
