South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Terry Davis, d/b/a Davis ABC Store vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Terry Davis, d/b/a Davis ABC Store
307 Washington St., Darlington, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
03-ALJ-17-0024-CC

APPEARANCES:
Terry Davis, Pro Se, for the Petitioner

Carol I. McMahan, Esquire, for the Respondent

James Cooper, Protestant
 

ORDERS:

FINAL ORDER AND DECISION

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2002), and §§ 1-23-310 et seq. (1986 and Supp. 2002) for a contested case hearing. The Petitioner, Terry Davis, d/b/a Davis ABC Store, seeks a retail liquor license. The Department of Revenue (Department) made a Motion to be Excused stating that it had submitted all relevant information it had in the Agency Transmittal. This motion was not granted. A hearing was held on this matter on April 8, 2003, at the offices of the Division in Columbia, South Carolina. The Parties and Protestant were present as indicated.

FINDINGS OF FACT

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 Protestant.

2.The Petitioner, Terry Davis, d/b/a Davis ABC Store, is seeking a retail liquor license. The proposed location is located at 307 Washington Street, Darlington, South Carolina, and was a licensed location for on-premises beer and wine sales from 1992 to 2002.

3.The qualifications set forth in S. C. Code Ann. § 61-6-110 (Supp. 2002) concerning the age, residency, and reputation of Mr. Davis are properly established. Furthermore, Mr. Davis 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 for the required length of time.

4.Mr. Davis 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.

6.No other member of the Mr. Davis’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. Mr. Davis has one other licensed location located at 447 West Broad Street, Darlington, South Carolina. This location is Davis Groceries and Game Room and has an on-premises beer and wine permit. Mr. Davis testified that there had been no violations at that location.

7. Mr. Cooper’s protest is based on the suitability of the location at 307 Washington Street. His contention is that the area is comprised of a mix of senior citizens and young families who are trying to clean up the historic area. He states that many older adults do not want to walk by a liquor store, and that the neighborhood children, particularly at the Learning Tree Day Care Center, will not be able to ride their bikes in the area. He is concerned that the crime rate will rise and that the quality of life will suffer.

8. Although Mr. Cooper’s concerns regarding the potential harm to the quality of life

in the neighborhood are understandable, those concerns are conjectural. All liquor sold at this location must be taken off the premises to be consumed. 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. 2002) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the Division 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.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 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.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.

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 Terry Davis, d/b/a Davis ABC Store of Darlington, Inc. for the location at 307 Washington Street, Darlington, South Carolina, be granted.

AND IT IS SO ORDERED.



_______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge


June 9, 2003

Columbia, South Carolina


 

 

 

 

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