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SC Administrative Law Court Decisions

CAPTION:
Lake Hartwell Spirits Partnership, d/b/a Lake Hartwell Spirits vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Lake Hartwell Spirits Partnership, d/b/a Lake Hartwell Spirits
1900 Hwy 187 South, Anderson, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
03-ALJ-17-0156-CC

APPEARANCES:
For the Petitioner:
Brian Galbally, pro se

For the Protestants:
Bruce Wayne Evans, pro se
Randy Eugene Beebe, pro se
Harold William Bates, pro se
Clyde William Mullinax, pro se
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before me pursuant to S.C. Code Ann. §61-2-260 (Supp. 2002) and S.C. Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner Lake Hartwell Spirits Partnership, d/b/a Lake Hartwell Spirits, (“Petitioner”), for a retail liquor license for a location at 1900 Highway 187 South, Anderson, South Carolina (“the subject location”). Upon receipt of written protests to the application, the South Carolina Department of Revenue (“Department”) transmitted the case to the Administrative Law Judge Division (“ALJD”) for a hearing. After timely notice to the parties and the Protestants, a contested case hearing was held on May 19, 2003, at the offices of the ALJD in Columbia, South Carolina. The Department was excused from attending the hearing. Upon review of the relevant and probative evidence and applicable law, the application for a retail liquor license is granted upon passing an inspection performed by the South Carolina Law Enforcement Division (“SLED”) of the finished facility to satisfy the requirements of the law.

FINDINGS OF FACT

Having carefully considered all testimony and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following findings of fact by a preponderance of the evidence:

1.Notice of the time, date, place, and subject matter of the hearing was given to all parties and to the Protestants in a timely manner.

2.Petitioner seeks a retail liquor license for the subject location of 1900 Highway 187 South, Anderson, South Carolina.

3.The subject location was licensed with an on-premises beer and wine permit from 1998 to 1999.

4.The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2002) concerning the age, residency, and reputation of the Petitioner are properly established. Furthermore, the Petitioner 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 in a newspaper of general circulation.

5.The Petitioner has no criminal record and is of sufficient moral character to receive a retail liquor license.

6.No other member of Petitioner’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.There is no evidence that the proposed location is within five hundred feet of any church, school, or playground.

8.The proposed retail liquor store is located at the intersection of Highway 187 and Dobbins Bridge Road, which is a dead-end road leading into a residential area. There is a two-way stop sign at the intersection controlling traffic. The proposed store is situated at angle approximately 65 feet back from the intersection. Parking for the proposed store is located in front of and on the side of the building and can accommodate approximately eight cars. Previous establishments which have operated at the proposed location include a grocery store and a bar.

9.A SLED investigation of the Petitioner’s establishment to determine whether it complied with the applicable laws revealed that renovations would be required before the location could obtain a retail liquor license and that a final SLED inspection would be needed.

10.The Department was excused from the hearing on the basis of its motion indicating that it would have issued the license in question but for the unanswered questions of the suitability of the location raised by the Protestants. The Department’s file on the Petitioner’s application was admitted into evidence at the hearing.

11.All of the Protestants expressed concern with safety if the Petitioner’s application for a license is granted. Bruce Wayne Evans, who is pastor of the nearby Andersonville Baptist Church, introduced several reports from the Anderson Sheriff’s Office regarding incidents that happened at the subject location when it was previously run as a bar. However, the Petitioner responded to the Protestant’s concerns by testifying that those problems arose primarily due to the nature of the business of the previous establishment, which served alcohol for consumption on its premises. Petitioner believes such incidents will not be a problem if its application is granted, since Petitioner will operate a retail liquor store and will not allow on-premises consumption of alcohol.

12.Randy Eugene Beebe, who is a member of the Andersonville Baptist Church, testified that he is also concerned about safety because there is a new elementary school 2.3 miles down the road from the subject location which will open in August. He is concerned not only about the increased traffic that may result from the proposed retail liquor store, but also about the type of clientele that the business, if licensed, will bring into the area. Mr. Beebe testified on cross-examination that he is against the sale of alcohol due to religious beliefs.

13.Two of the Protestants, Harold William Bates and Clyde William Mullinax, testified that they reside in the community and are concerned that the retail liquor store, if licensed, would increase traffic at the intersection of Dobbins Bridge Road and Highway 187. They testified that when other businesses operated at the subject location, traffic always had to slow down at that intersection. They testified that if the business is licensed, the additional cars which will be parked in front of the building will make it hard to see what traffic is coming from both directions at that intersection. They indicated an aversion to the sale of alcohol in general.

14.All of the Protestants expressed concerns about increased traffic to the area. However, the evidence established that other businesses, including a grocery store and a bar, have operated at this location, and, due to the nature of the business, a retail liquor store may not cause as much increase in traffic as did the grocery store and the bar. Furthermore, I find that the evidence did not sufficiently establish that there would be increased danger to school children or other pedestrians due to the licensing of this location to sell liquor. For the foregoing reasons, I find the proposed location to be suitable for a retail liquor license.

CONCLUSIONS OF LAW

Based upon the findings of fact, I conclude as a matter of law, the following:

1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters governing alcoholic beverages, beer, and wine.

2.S.C. Code Ann. § 61-6-110 et seq. (Supp. 2002) sets forth the requirements for determining eligibility for a retail liquor license.

3.Licenses issued by the State for the sale of beer, wine, and liquor are not rights or property, but are rather privileges granted in the exercise of the police power of the State to be used and enjoyed only so long as the restrictions and conditions governing them are complied with. As the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it, that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v. S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).

4.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 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.The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a retail liquor license using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance and weight of any testimony and evidence offered.

6.Although “proper location” is not statutorily defined, broad discretion is vested in the judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278 S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered. The proximity of a location to a church, school or residences is a proper ground by itself upon which the location may be found to be unsuitable and a license denied. Byers v. S. C. ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

7.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, 261 S.C. 168, 198 S.E.2d 801 (1973).

8.Much of the Protestants’ arguments against the granting of the license sought herein is that they do not want this type of business, i.e., a retail liquor store in their community. However, an aversion to the sale of alcoholic beverages is not within the statutory grounds for denial of a license request. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (181).

9.To some extent, the Protestants are asking the ALJD to effectuate zoning. The ultimate purpose of zoning is to confine certain classes of buildings and uses to certain localities. 101A C.J.S. Zoning and Land Planning § 101 (1979). Such authority is vested solely in the local government.

10.Giving weight to the testimony of the Petitioner, I find that the proposed location is suitable for a retail liquor license. I further find that the application for a retail liquor license should be granted, but only upon the Petitioner first passing an inspection by SLED of the finished facility to satisfy the requirements of the law.

ORDER

Based upon the foregoing findings of fact and conclusions of law,

IT IS HEREBY ORDERED that the Petitioner’s application for a retail liquor license for the location at 1900 Highway 187 South, Anderson, South Carolina, is granted upon passing an inspection performed by SLED of the finished facility to satisfy the requirements of the law;

AND IT IS SO ORDERED.

________________________________________

C. DUKES SCOTT

ADMINISTRATIVE LAW JUDGE


May 22, 2003

Columbia, South Carolina


 

 

 

 

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