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 Spontis
Enterprises, d/b/a Wine World (“Petitioner”), for a retail liquor license for a location at 11405 Ocean
Highway, Unit 17, Pawleys Island, South Carolina. Upon receipt of written protest 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 July 24, 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 11405 Ocean
Highway, Unit 17, Pawleys Island, South Carolina.
3.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.
4.The Petitioner is of sufficient moral character to receive a retail liquor license.
5.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.
6.There is no evidence that the proposed location is within five hundred feet of any
church, school, or playground.
7.The proposed retail liquor store is located in a strip mall in a commercial area.
8.A SLED investigation of the Petitioner’s establishment to determine whether it
complied with the applicable laws revealed that construction was underway and that a final SLED
inspection would be needed to determine whether the establishment complies with the applicable
laws.
9.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.
10.Protestant Rob Svendsen testified that he objects to the Petitioner’s application
primarily because there are already four liquor stores in the area serving a relatively small market.
Mr. Svendsen testified that approximately 10,309 people reside within the 29585 ZIP code, which
encompasses Pawley’s Island and Litchfield. This population of residents is currently being served
by four existing retail liquor stores. Mr. Svendsen testified that, in his opinion, adding a new liquor
store at the Petitioner’s proposed location within this ZIP code area would affect the economic
viability of the existing stores, as the marketplace is not expanding at a sufficient pace to allow all of
these stores to survive.
11.Shirley Spontis testified that she owns Spontis Enterprises along with her husband.
She testified that she has observed new residential and commercial growth within a three-mile radius
of the location of their proposed liquor store. She stated that within this three-mile radius there are
several new commercial construction sites, three new strip malls, two new medical facilities, a new
hospital, a new post office, and several new banks. She also stated that a sign indicates that a new
housing development complex will soon be constructed within this three-mile radius, as well. She
further testified that the site of the proposed liquor store is located within the Grand Strand area,
which attracts tourists annually. She stated that in her opinion, based upon the new residential and
commercial growth she has observed within a three-mile radius of the proposed location, combined
with the number of tourists who visit the area every year, the area can support the addition of a new
liquor store without affecting the economic viability of the existing stores.
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.The crux of the Protestants’ objection is that this retail liquor license should be denied
because there are already four liquor stores in the area of the proposed location, and because a new
liquor store in this area will affect the economic viability of the existing stores. S.C. Code Ann. §
61-6-170 (Supp. 2002) provides that “[t]he department 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 more 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 primary rule of statutory construction is to ascertain and effectuate the intent of the
legislature. Plyler v. Evatt, 313 S.C. 405, 438 S.E. 2d 244 (1993). The intent of the General
Assembly in enacting S.C. Code Ann. § 61-6-170 (Supp. 2002) was not to ensure economic viability
of businesses already licensed in the area, but to safeguard the public health, safety, and welfare of
the citizens who live in the area. See Monarch Enters., Inc., d/b/a Monarch Liquors v. S.C. Dep’t
of Revenue, Docket No. 01-ALJ-17-0520-CC (ALJD, February 22, 2002). In this case, the evidence
did not establish that the public safety, health or welfare will be endangered by the issuance of a
license in this case because of a plethora of retail liquor stores. Therefore, the proposed location is
not unsuitable pursuant to S.C. Code Ann. § 61-6-170 (Supp. 2002).
9.Considering all relevant factors, 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 11405 Ocean Highway, Unit 17, Pawleys Island, 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
July 25, 2003
Columbia, South Carolina |