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 |