SC Administrative Law Court Decisions

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 212 Okatie Village Drive, Suite 103, Okatie, South Carolina.

2. Petitioner is a domestic Limited Liability Company. The Limited Liability Company was formed on August 18, 2008. Petitioner is currently in good standing with the South Carolina Secretary of State.

3. Notice of the application was lawfully posted at the location, and in The Beaufort Gazette, on September 4, 11, and 18, 2008, a newspaper of general circulation.

4. Petitioner does not currently hold any retail liquor licenses, or have an interest, financial or otherwise, in any retail liquor store.

5. The proposed location is in a shopping center situated near the intersection of Okatie Highway and Okatie Center Boulevard South.

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. The proposed location will be managed by Michelle M. McCutcheon, registered agent of the single member LLC.

9. Protestant Timothy P. O’Gorman is the owner of a retail liquor store located near the proposed location. Mr. Sullivan objects to the license being issued because of the number of liquor stores already in business in the area.

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. 2008) grants jurisdiction to the Administrative Law Court.

2. S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2008) outlines the general requirements for determining eligibility for a retail liquor license. S.C. Code Ann. § 61-6-120 (Supp. 2008) 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. 2008) 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. A retail liquor store may sell wines of all types, regardless of their alcoholic content, but may not sell beer, ale, porter, or similar malt beverages that are less than five percent alcohol by weight. S.C. Code Ann. §61-6-1540(A), (B); S.C. Code Ann. § 61-4-10 Supp. 2008).

7. 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).

8. The ultimate issue of the Protestant’s case is that he will be in direct competition with this liquor and wine store. Protestant claims that this would economically harm his business and the goodwill that he has worked to achieve. Protestant claims that this license should be denied because the immediate area, which includes his store located adjacent to the proposed location, is adequately served. 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 growth, as new homes and businesses have recently opened in the area. This construction is a clear indicator of the growth the area is experiencing.

For the reasons above, the Court finds that the Petitioner has met all the statutory requirements 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 Tradewinds Wine & Spirits, LLC, d/b/a Tradewinds Wine & Spirits, 212 Okatie Village Drive, Suite 103, Okatie, South Carolina must be granted.

AND IT IS SO ORDERED.

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CAROLYN C. MATTHEWS

Administrative Law Judge

March 10, 2009

Columbia, South Carolina