ORDERS:
FINAL ORDER AND DECISION
STATEMENT
OF THE CASE
This matter comes before the Administrative Law Court
(ALC or Court) pursuant to S.C. Code Ann. § 61-6-185 (Supp. 2007) and §§
1-23-310 et seq. (Supp. 2007) for a contested case hearing.
Petitioner is seeking a retail liquor license for its location at 1585 Central
Avenue, Unit B-2, Summerville, South Carolina. After proper notice, a
hearing was held on November 4, 2008 at the offices of the ALC in Columbia,
South Carolina.
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 of Petitioner,
the Respondent and the Protestant, I make the following Findings of Fact by a
preponderance of the evidence:
1. John
Weiner, a member of J.W. Associates of Mt. Pleasant, is seeking a retail liquor
license for 1585 Central Avenue, Unit B-2, Summerville, South Carolina. Mr.
Weiner is the manager of the LLC and his mother is the LLC’s only other
member. He has been a resident of South Carolina since 1995. J.W. Associates
of Mt. Pleasant recently acquired Paradise Liquors, which has held a retail
liquor license in the past.
2. The qualifications set forth
in S.C. Code Ann. § 61-6-110 (Supp. 2007) concerning the age, residency, and
reputation of Mr. Weiner were properly established. Furthermore, the licensee
has not had a license for the sale of alcoholic liquors revoked within the last
five years. Also, the licensee has no criminal record and is of sufficient
moral character to receive a retail liquor license.
3. Although Mr. Weiner previously held a retail
liquor license for another location, he does not currently own an interest,
financial or otherwise, in more than three retail liquor stores. See S.C. Code Ann. § 61-6-140 (Supp. 2007). Notice of the application was
published in a newspaper of general circulation and was lawfully posted at the
location. Furthermore, there was no evidence presented that the proposed
location is within three hundred feet or unreasonably close to a school or
playground.
4. Petitioner asserts that the location is suitable
for a retail liquor license and no evidence was presented to the contrary. Therefore,
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. 2007) 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. 2007) grants the ALC the responsibilities to
determine contested matters governing alcoholic beverages, beer and wine.
2. S.C.
Code Ann. §§ 61-6-110 et seq. (Supp. 2007) sets forth the general
requirements for determining eligibility for a retail liquor license. S.C.
Code Ann. § 61-6-140 (Supp. 2007) further restricts a licensee from possessing
more than three retail licenses while S.C. Code Ann. § 61-6-150 (Supp. 2007)
ultimately prohibits an individual from having an interest in more than three
retail liquor stores in the state of South Carolina. Furthermore, no applicant
can receive a retail liquor license if the business is located “if the place
of business is within three hundred feet of any church, school, or playground
situated within a municipality or within five hundred feet of any church,
school, or playground situated outside of a municipality.” S.C. Code Ann. §
61-6-120 (Supp. 2007). No evidence was presented that the proposed location violates
any of the above provisions.
3. The
Administrative Law Court is vested, as the trier of fact, with 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 118 (1981); S.C. Code Ann. §
61-6-910 (Supp. 2007). Although “proper location” is not statutorily defined,
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 the adverse
effect the proposed location will have on the community. Palmer v. S.C. ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). It is also relevant
to consider the previous history of the location. 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). 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, 189 S.E.2d 301; Taylor v. Lewis, 198 S.E.2d 801.
“A
liquor license or permit may also be properly refused on the ground that the
location of the establishment would adversely affect the public interest, that
the nature of the neighborhood and of the premises is such that the
establishment would be detrimental to the welfare . . . of the inhabitants, or
that the manner of conducting the establishment would not be conducive to the
general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121
at 501 (1981). Nevertheless, 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 by itself to deny the application. See 45 Am.
Jur. 2d Intoxicating Liquors §162 (Supp. 1995); 48 C.J.S. Intoxicating
Liquors §119 (1981).
4 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 J.W. & Associates of Mt. Pleasant d/b/a
Paradise Liquors be granted upon Petitioner’s payment of the required fees and
costs.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
November 7, 2008
Columbia, South Carolina
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