Retail Servs. & Sys., Inc. v. S.C. Dep't of Revenue, Appellate Case No. 2014-002728

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtACTING JUSTICE TOAL
Citation799 S.E.2d 665,419 S.C. 469
Parties RETAIL SERVICES & SYSTEMS, INC., d/b/a Total Wine & More, Appellant, v. SOUTH CAROLINA DEPARTMENT OF REVENUE and ABC Stores of South Carolina, Respondents.
Decision Date29 March 2017
Docket NumberOpinion No. 27709,Appellate Case No. 2014-002728

419 S.C. 469
799 S.E.2d 665

RETAIL SERVICES & SYSTEMS, INC., d/b/a Total Wine & More, Appellant,
v.
SOUTH CAROLINA DEPARTMENT OF REVENUE and ABC Stores of South Carolina, Respondents.

Appellate Case No. 2014-002728
Opinion No. 27709

Supreme Court of South Carolina.

Heard November 5, 2015
Filed March 29, 2017
Petition for Rehearing Dismissed May 31, 2017


Dwight Franklin Drake and Brian Montgomery Barnwell, both of Nelson Mullins Riley & Scarborough, LLP, of Columbia, and Baylen Thomas Moore, of Columbia, for Appellant.

Burnet Rhett Maybank, III and James Peter Rourke, both of Nexsen Pruet, LLC, of Columbia; Counsel for Litigation G. David Crocker, General Counsel for Litigation Milton Gary Kimpson and Counsel for Litigation Carol I. McMahan, all of South Carolina Department of Revenue, of Columbia, for Respondents.

ACTING JUSTICE TOAL :

419 S.C. 471

Appellant Retail Services & Systems, Inc. Retail Services & Systems, Inc., d/b/a Total

799 S.E.2d 666

Wine & More (Retail Services) appeals the trial court's decision granting summary judgment to Respondents South Carolina Department of Revenue (SCDOR) and ABC Stores of South Carolina (ABC Stores). We reverse.

ANALYSIS

Retail Services owns and operates three separate liquor store locations in Charleston, Greenville, and Columbia, South Carolina. SCDOR is charged with the administration of South Carolina's statutes concerning the manufacturing, sale, and retail of alcoholic liquors. S.C. Code Ann. §§ 61-2-10 & -20. Retail Services petitioned SCDOR to open a fourth store in Aiken, however, SCDOR refused to grant Retail Services a fourth liquor license under sections 61-6-140 and -150 of the South Carolina Code,1 which limit a liquor-selling entity to three retail liquor licenses. Additionally, ABC Stores lobbies before the General Assembly on behalf of its members who are owners and holders of retail dealer licenses. Therefore, Retail Services brought this action against SCDOR and ABC Stores seeking a declaratory judgment that these provisions of the South Carolina Code are unconstitutional.

Appellant argues that sections 61-6-140 and -150: (1) exceed the scope of the General Assembly's police power provided for in article VIII-A of the South Carolina Constitution2 because

419 S.C. 472

the licensing limits do not promote the health, safety, or morals of the State, but merely provide economic protection for existing retail liquor store owners; (2) violate its rights to equal protection3 under the law by creating arbitrary distinctions, in that the three-store limit unfairly treats large retailers differently from small retailers and that section 61-6-150's "grandfather clause," unfairly discriminates against those that did not have an interest on or before July 1, 1978, and unfairly differentiates between owners of stores that sell liquor for on-site consumption and those that sell liquor for off-site consumption; and (4) violate its due process rights4 because they unfairly prevent Appellant from operating in its chosen field of business.

The trial court found the provisions constitutional because (1) they are within the scope of the State's police power; and (2) they satisfy the rational basis test, which, because they do not infringe on a fundamental right or implicate a suspect class, is all that is required. Therefore, the circuit court granted Respondents' motions for summary judgment. Appellant appealed the circuit court's decision. We now review the circuit court's decision and reverse.

"This Court has a limited scope of review in cases involving a constitutional challenge to a statute because all statutes are presumed constitutional and, if possible, will be construed to render them valid." Curtis v. State , 345 S.C. 557, 569, 549 S.E.2d 591, 597 (2001) (citing Davis v. Cnty. of Greenville , 322 S.C. 73, 77, 470 S.E.2d 94, 96 (1996) ).

While article VIII-A, section 1 of the South Carolina Constitution contains a broad mandate to the General Assembly with respect to regulating the sale and retail of alcohol in South Carolina, this ability to regulate is not as far-reaching as Respondents maintain. See

799 S.E.2d 667

State ex rel. George v. City Council of Aiken , 42 S.C. 222, 20 S.E. 221, 230 (1894) ("[I]f the

419 S.C. 473

act is not a police measure, it is unconstitutional."). We find that sections 61-6-140 and -150 of the South Carolina Code are unconstitutional because they exceed the scope of the General Assembly's police powers.5

Under the current paradigm, the government may "regulate any trade, occupation or business, the unrestrained pursuit of which might affect injuriously the public health, morals, safety or comfort; and in the exercise of the power particular occupations may be ... required to be conducted within designated limits." Denene, Inc. v. City of Charleston , 359 S.C. 85, 98, 596 S.E.2d 917, 924 (2004) (quoting City of Charleston v. Esau Jenkins , 243 S.C. 205, 210–11, 133 S.E.2d 242, 244 (1963) ). This mandate is especially broad with respect to regulating liquor:

In the exercise of the police power the General Assembly has the right to prohibit and to regulate the manufacture, sale, and retail of alcoholic liquors or beverages within the State. The General Assembly may license persons or corporations to manufacture, sell, and retail alcoholic liquors or
419 S.C. 474
beverages within the State under the rules and restrictions as it considers proper....

S.C. Const. art. VIII-A, § 1.

Here, the circuit court justified the three-license restrictions on corporations as "preserving the right of small, independent liquor dealers to do business." Moreover, counsel for Respondents repeatedly stated to this Court during oral arguments that the only justification for these provisions is that they support small businesses. The record does not contain any evidence of the alleged safety concerns incumbent in regulating liquor sales in this way. Without any other supportable police power justification present, economic protectionism for a certain class of retailers is not a constitutionally sound basis for regulating liquor sales. See Bacchus Imports v. Dias , 468 U.S. 263, 276, 104 S.Ct. 3049, 82 L.Ed.2d 200 (1984) ("State laws that constitute mere economic protectionism are ... not entitled to the same deference as laws enacted to combat the perceived evils of an unrestricted traffic in liquor."); McCullough v. Brown , 41 S.C. 220, 247–48, 19 S.E. 458, 472–73 (1894), overruled on other grounds by State ex rel. George , 42 S.C. at 254, 20 S.E. at 233 (holding that if a statute regulating alcoholic liquors is enacted for economic purposes rather than "as a police regulation of the business of selling intoxicating liquors," it is unconstitutional).

Not only is there no indication in this record that these provisions exist for any other reason than economic protectionism, the provisions themselves and statutory scheme to which they belong lend further support to Appellant's position. As Appellant points out, the provisions do not limit the number of liquor stores that can be licensed in a certain area—only the number than can be owned by one person or entity.6 Another

799 S.E.2d 668

provision governs the specific placement of retail establishments away from churches, schools and playgrounds. See S.C. Code Ann. § 61-6-120. Therefore, Respondents'

419 S.C. 475

contention that the provisions advance the safety and moral interests of the State, no doubt a legitimate State interest, is unavailing with respect to sections 61-6-140 and -150.

While the dissent contains a learned and well-reasoned analysis of constitutional challenges to statutes restricting the sale of liquor, the dissent acknowledges that Respondents and the trial court justified the three-license restrictions on corporations as "preserving the right of small, independent liquor dealers to do business." Appellant argues that this proves that this statutory restriction exists solely for economic protectionism and is thus invalid. The dissent acknowledges that this argument has some appeal, but claims the restriction must be evaluated alongside the numerous other justifications expressed for the statutes before proceeding to cite justifications offered in case from New Hampshire (1972), Massachusetts (1978), and New Jersey (1964 and 2009). While the dissent provides that economic protectionism is merely one of the police justifications for this type of regulation and there are other valid police purposes attributable to these provisions, this contention is not supported by the record below, as it was in the records of the cases cited from other states. As noted previously, Respondents' experienced counsel repeatedly stated to this Court during oral arguments that the only justification for these provisions is that they support small businesses.7

Ultimately, the Respondents' and dissent's position amounts to...

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