This
matter comes before the Administrative Law Court (Court) pursuant to S.C. Code
Ann. §§ 61-6-100 et seq. (Supp. 2004), § 61-6-910
(Supp. 2004), and §§ 1-23-310 et seq. (1986 and Supp.
2004) for a contested case hearing. The Petitioner, David Hickson, Jr., d/b/a
Corner Liquors, seeks the renewal of a retail liquor license. The Respondent,
SC DOR, would have granted the license but for the protests. The Protestants
have raised concerns about the alcohol outlets in the area and their effect on
the community. A hearing was held on this matter on October 13, 2005, at the
offices of the Court in Columbia, South Carolina. Based on the evidence before
me, I find and order that the license be granted.
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 parties and the Protestant, 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, the Respondent, and the Protestants. All were present as noted
above. Mr. Larry Cooper had filed a protest with the Department, but was not
present at the hearing. His protest is therefore deemed to be abandoned.
2. The
Petitioner, David Hickson, d/b/a Corner Liquors, is seeking a retail liquor
license. The proposed location is located at 600 B. Davis Street, Lake City,
South Carolina.
3. The
qualifications set forth in S. C. Code Ann. § 61-6-110 (Supp. 2004) concerning
the age, residency, and reputation of David Hickson are properly established.
Furthermore, Mr. Hickson has not had a license for the sale of alcoholic
liquors revoked within the last five years and notice of the application was
lawfully posted both at the location and published in a newspaper of general
circulation, as required by § 61-6-180.
4. Mr.
Hickson has no criminal record and is of sufficient moral character to receive a
retail liquor license.
5. There
was no evidence that the proposed location is within three hundred feet of any
church, school or playground, as provided in § 61-6-120 (A).
6. No
other member of the Mr. Hickson’s household has been issued a retail liquor
store license. Additionally, the Petitioner has not been issued more than
three retail liquor licenses, nor does he have an interest, financial or
otherwise, in more than three retail liquor stores.
7. Mr.
Hickson and his wife both testified and I find them to be very credible
witnesses. They addressed their desire to improve the community, to invest in
Lake City and to keep any loiterers away from the store and the trash removed
from the surrounding area. They specifically noted that they had removed a
canopy that they had installed near the store when it became apparent that it
was becoming a gathering place for loiterers. In addition, they have
participated in alcohol education programs sponsored by some of their
wholesalers, and in community beautification events.
8. The
Protestants addressed the Court. Their primary concerns are that the store will
promote loitering, drug activity and additional criminal behavior. They are
worried about increased foot and vehicular traffic through their neighborhood
and the possible attendant trash.
9. I find
the proposed location to be suitable for a retail liquor license.
CONCLUSIONS
OF LAW
Based
upon the above Findings of Fact, I conclude the following as a matter of law:
1. S.C.
Code Ann. § 1-23-600 (Supp. 2004) grants jurisdiction to the Administrative Law
Court to hear contested cases under the Administrative Procedures Act.
Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2004) grants the Court the
responsibilities to determine contested matters governing alcoholic beverages,
beer and wine.
2. S.C.
Code Ann. §§ 61‑6‑110 et seq. (Supp. 2004)
sets forth the requirements for
determining
eligibility for a retail liquor license.
3. S.C. Code Ann. § 61‑6‑170 (Supp. 2004) states
“the department
(South Carolina Department of Revenue) 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 mote
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.”
The Department
did not take such action in this case. They specifically did not oppose this
license and would have granted it, but for the protest.
4. 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). As the trier of fact, the Administrative Law Judge is authorized to
determine the fitness or suitability of the proposed business location for a
license to sell liquor using broad, but not unbridled, discretion. Byers v.
South Carolina ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App.
1984). 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). Additionally, without
sufficient evidence of an adverse impact on the community, the application must
be granted if the statutory criteria are satisfied. The fact that a Protestant
objects to the issuance of a license 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).
5. 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). There was no testimony or other
evidence submitted as to the specific adverse impact that the granting of this
particular license would have on the community. There were no concrete facts or
incident reports submitted, only conjecture and concerns by the Protestants.
6. The
Petitioner meets the statutory requirements for holding a retail liquor license
at the proposed location.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law,
IT
IS HEREBY ORDERED that the retail liquor license of Petitioner David
Hickson, d/b/a Corner Liquors for the location at 600 B. Davis Street, Lake
City, South Carolina, be granted upon the Petitioner’s payment of the required
fees and costs.
AND IT IS SO
ORDERED.
_______________________________
CAROLYN
C. MATTHEWS
Administrative
Law Judge
November 21, 2005
Columbia, South Carolina