SC Administrative Law Court Decisions

This matter comes before the South Carolina Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 1-23-600 (Supp. 2000) following the Petitioner's request for a contested case hearing. The Respondent denied the Petitioner's application for an off-premises sale and consumption (liquor) license because of public protests by concerned citizens concerning the suitability of the location. One Protestant in this matter, Bob Sherr, filed a Motion to Intervene, which was granted by my Order dated May 15, 2001. ⁽¹⁾

The Department filed a Motion to be Excused, stating that the proposed location met all the statutory requirements for an off-premises sale and consumption license and it would have granted the license but for the public protests of the concerned citizens. The Court did not grant this Motion.

A hearing was held in this matter on May 17, 2001 at the South Carolina Administrative Law Judge Division, located at 1205 Pendleton Street, Suite 224, Columbia, South Carolina. Notice of the time, date, place, location, and hearing was timely sent to all parties, as well as the Protestants.

Having observed the testimony of the witnesses and exhibits presented at the hearing and closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

• The Respondent seeks a retail liquor license for an establishment known as Decker Liquors, located at 2212 Decker Boulevard, Columbia, Richland County, South Carolina.
• Ralph H. Stevenson, Jr. (Stevenson), was born on January 7, 1927, and was 74 years of age at the time of the hearing.
• Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Columbia Star, a newspaper of general circulation in the area where the Petitioner proposes to engage in business. The notice appeared on October 12, 19 and 26, 2000.
• Notice of the application was given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.
• Stevenson has been a legal resident of the State of South Carolina for over thirty (30) days prior to the application and has maintained his principal place of abode in the State of South Carolina for over thirty (30) days prior to the application.
• Stevenson has ever had a beer or wine permit or any other alcoholic beverage license/permit issued revoked. This location has not been previously permitted for the sale of alcoholic beverages.
• Stevenson is of good moral character.
• The business hours of the proposed location will be Monday through Saturday, 9:00 a.m. to 7:00 p.m.
• No church, school, or playground is located within five hundred (500) feet of the proposed location.

Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:

• The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000).
• The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
• Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a retail liquor license. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina 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 the witnesses and determine the relevance and weight of any testimony offered.
• 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 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. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of other licensed locations in the immediate vicinity, ⁽²⁾ as well as the existence of small children in the area.
• In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
• 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 permit is not a sufficient reason alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).
• Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).
• S.C. Code Ann. § 61-6-170 (Supp. 2000) provides that the "Department may, in its discretion, limit the further issuance of retail dealer licenses."
• The intent of the General Assembly in enacting Section 61-6-170 was not to ensure economic viability to businesses already licensed, but rather to safeguard the public health, safety, and welfare of the citizens who live in the area. See Alok Pandey, Pandey, Inc., d/b/a Party Pop Shop/One Stop Liquor v. South Carolina Department of Revenue, Docket No. 95-ALJ-17-0527-CC. There is no evidence in the record which establishes that the public safety, health or welfare is endangered by the issuance of a license in this case.
• I find that this location and the operator are suitable for retail liquor sale.

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the Petitioner's application for a retail liquor license is GRANTED.

AND IT IS SO ORDERED. _____________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

May 29, 2001

Columbia, South Carolina

1. The other protests in this matter were filed by Robert C. Bogue, T.B. Ellis, John Stogh, Brooks Brown, III, and J. Madison Dye, Jr. Mr. Brown, Mr. Bogue, and Mr. Stogh were not present at the hearing. Their protests, therefore, are deemed abandoned.

2. The Intervenor, as well as the other Protestants in this matter, allege that a sufficient number of liquor stores serve the area and that the area cannot support another location.