ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2005), § 61-6-910 (Supp. 2005), and §§ 1-23-310 et seq. (1986 and Supp. 2005) for a contested case hearing. The Petitioner, Mahesh Management, LLC, d/b/a Stop-N-Shop, seeks a retail liquor license. The Department of Revenue (Department) denied the application due to the receipt of a public protest. A hearing was held on this matter on November 15, 2006, before this Court in Columbia, South Carolina. At the hearing, the parties stipulated (1) that the location has been licensed as a retail liquor store from at least July 1998 until October of 2005; and (2) that the only reason for the hearing was the protest regarding the suitability of the location. Based on the evidence before me, I conclude that the Petitioner has met its burden of proof and that the retail liquor license should be granted.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility and taking into consideration the burden of persuasion upon the parties, 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, Mahesh Management, LLC, d/b/a Stop-N-Shop, is seeking a retail liquor license. The proposed location is 147 Yemassee Highway, Hampton, South Carolina. Roger Vyas is the president of Mahesh Management, LLC.
3. The qualifications set forth in S. C. Code Ann. § 61-6-110 (Supp. 2005) concerning the age, residency, and reputation of Mr. Vyas are properly established. Furthermore, Mr. Vyas 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. Mr. Vyas has no criminal record and is of sufficient moral character to receive a retail liquor license.
5. Despite the claims of the Protestant, here was no evidence that the proposed location is within three hundred feet of any church, school or playground.
6. No other member of the Vyas 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. All parties stipulated that the Applicant is qualified to own and operate retail liquor
store, and that the proposed location is suitable under the statute. The only issue is the Protestant’s contention that the proposed location is too close to his church, Pilgrim Ford Missionary Baptist Church, and to a nearby playground.
8. The proposed location will be required to maintain the statutory limits on operation of a retail liquor store. Specifically, the store will be closed at 7:00 PM each weekend and on Saturday, and will be closed all Sunday. Therefore, the proposed location will be closed at many times that the church would conduct its regularly scheduled services.
9. Pastor Rogerstine Gourdine, Thomas Riley and Elijah Hamilton, Jr. all testified in opposition to the licensing of this location, primarily due to its proximity to the church and the playground, but also due to the presence of loiterers in the area and the problems that excessive alcohol consumption can cause in the community.
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. 2005) grants jurisdiction to the Administrative Law Court to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2005) grants the Court the responsibility to determine contested matters governing alcoholic beverages, beer and wine.
2. S.C. Code Ann. §§ 61‑6‑110 et seq. (Supp. 2005) 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. Likewise, this location has been licensed for several decades without any evidence of an adverse impact on the church or community.
6. Although the Protestant was very passionate in his objection to the proposed location and argued his case well, SC Code Ann. § 61-6-120 states that a retail liquor licensed location shall be at least 300 feet away from any church school or playground located within a municipality, and that the measurement for the same shall be “computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground.. . . ” S.C. Code Ann. § 61-6-120 (Supp. 2005). In addition, SC Reg. 7-303 (Supp. 2005) further clarifies that the measurements between the location and the church, school or playground shall be made to the nearest point of entrance to the grounds of the church or school, and that “entrance” shall be the entrance to the grounds nearest the entrance to the building. Furthermore, the nearest point of grounds in use as a playground is limited to the grounds actually in use as a playground and the grounds necessary for ingress and egress from the public thoroughfare. SC Reg. 7-303 (Supp. 2005).
7. The Petitioner meets the statutory requirements for holding a retail liquor license at the proposed location, and the Protestant has failed to carry his burden of proof that the location is within the statutorily prohibited area under S.C. Code Ann. § 61-6-120 (Supp. 2005).
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the Department of Revenue complete its processing of the Petitioner’s application for a retail liquor license at 147 Yemassee Highway, Hampton South Carolina, and that the license be granted upon the Petitioner’s payment of the required fees and costs.
AND IT IS SO ORDERED.
_______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
December 14, 2006
Columbia, South Carolina
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