Pursuant
to notice to the parties, a hearing was held on December 10, 2007. Both
parties and the Protestant appeared at the hearing. After carefully weighing
all the evidence, I conclude that the retail liquor license should be granted.
FINDINGS
OF FACT
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 evidence:
1. Petitioner
seeks a retail liquor license for its location at 4411 Highway 24, Anderson,
South Carolina.
2. Petitioner
is a resident of the State of South Carolina and has maintained his principal
place of abode in this state for at least thirty (30) days prior to making this
application.
3. Notice
of the application was lawfully posted at the location, and in the Anderson
Independent Mail, a newspaper of general circulation.
4. Petitioner
does not currently hold any other retail liquor licenses, or have an interest,
financial or otherwise, in any other retail liquor store.
5.
The location is in a commercial shopping center located at the corner of
Highway 24 and Old Green Pond Road. The shopping center currently houses a Bi-Lo
Super Center and other retail stores.
6.
There are no residences, churches, schools, or playgrounds within five
hundred (500) feet of the location.
7. The
location’s proposed hours of operation are from 9:00 a.m. to 7:00 p.m., Monday
through Saturday.
8.
Protestant Howard L. Pinkham, is the owner of Lakestop ABC, a retail
liquor store located across the street from the location. Mr. Pinkham objects
to the license being issued because of the number of liquor stores already in
business in the area.
9. Currently,
there are two retail liquor stores within a half mile of one another and the
proposed location.
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. 2006) grants jurisdiction to the Administrative
Law Court.
2. S.C. Code Ann. §§ 61-6-110 et seq.
(Supp. 2006) outlines the general requirements for determining eligibility for
a retail liquor license. S.C. Code Ann. § 61-6-120 (Supp. 2006)
specifically provides that a liquor license shall not be issued to a place of
business if:
the
place of business is…within five hundred feet of any church, school, or
playground situated outside a municipality. Such distance shall be
computed by following the shortest route of ordinary pedestrian or vehicular travel
along a public thoroughfare from the point of the grounds in use as part of
such church, school, or playground…
3. S.C. Code Ann. § 61-6-910 (2) (Supp.
2006) provides that an application for a license to sell alcoholic liquors must
be denied if, “the store or place of business to be occupied by the applicant
is not a suitable place.”
4. 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. Alcoholic
Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Administrative
law judges are authorized to determine the fitness of an applicant for alcohol
permits and licenses using broad, but not unbridled discretion. Byers v.
S.C. Alcoholic Beverage Control Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
5. Although “proper location” is not
statutorily defined, the Administrative Law Court has the authority to
determine the fitness or suitability of a particular location. Fast Stops,
Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). 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 upon the community within
which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d
335 (1985). In determining the suitability of a location, it is proper for this
Court to consider any evidence that demonstrates any adverse effect the
proposed location will have on the community. Palmer, supra.
Furthermore, 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).
6. Unless there is 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 by itself to deny the
application. See 45 Am.Jur.2d Intoxicating Liquors §162 (Supp. 1995);
See 48 C.J.S. Intoxicating Liquors § 166 (2004).
7. The ultimate issue of the Protestant’s case
is that he will be in direct competition with this liquor store. Protestant claims
that this would economically harm his business, and further speculates that the
petitioner’s liquor store will fail because of the close proximity to the other
stores. Protestant claims that this license should be denied as there are
already two retail liquor stores in the immediate area, including his which is
located directly across the street from the proposed location. Protestant maintains
that the addition of this liquor store may eventually drive one of the existing
locations out of business. Findings, however, may never be based upon surmise, conjecture, or speculation, but must be founded on
evidence of sufficient substance to afford a reasonable basis for it. Mullinax
v. Winn-Dixie Stores, Inc., 318 S.C. 431, 443, 458 S.E.2d 76, 83 (Ct. App.
1995). While the Court is sympathetic to the Protestant’s concerns, the
statutes provide no protection based solely on the economic security of the
existing liquor stores in the area. Testimony introduced at trial confirms
that the area is one of high growth, as Bi-Lo and Food Lion have recently
opened large shopping centers. This construction and plans for housing
developments in the vicinity are clear indicators of the growth the area is
experiencing.
For the reasons above, the Court finds that the
Petitioner has met all of the statutory requirement for a retail liquor store,
and authorizes the Department to issue the retail liquor license.
ORDER
Based
upon the above Findings of Fact and Conclusions of Law:
IT
IS HEREBY ORDERED that the application for a retail liquor license by Brian
Robert Phillips, d/b/a Floppy’s Spirits, 4411 Highway 24, Anderson, South
Carolina must be granted.
AND IT IS SO
ORDERED.
___________________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
December 21, 2007
Columbia, South Carolina