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. § 61-2-90 (Supp. 2003), §§ 61-6-100 et seq. (Supp. 2003), and §§ 1-23-310 et seq.
(1986 & Supp. 2003) for a contested case hearing. Sam’s East, Inc., d/b/a Sam’s Club #8278
(Petitioner), seeks a retail liquor license. Several protests to the application were filed with the
South Carolina Department of Revenue (Department). Because of the protests, the hearing was
required. The Department filed a Motion to be Excused setting forth that but for the protests it
received, this permit would have been issued. By previous Order, that motion was denied.
A hearing in this matter was held before me on February 2, 2005, at the offices of the
Administrative Law Court in Columbia, South Carolina. Both parties and Protestants Sunil C.
Fadia and Thomas M. Smith appeared at the hearing. Evidence was introduced and testimony
was given. After carefully weighing all the evidence, this Court finds 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, taking into consideration the burden of persuasion by the parties, I make
the following Findings of Fact by a preponderance of evidence:
1.The ALC has personal and subject matter jurisdiction.
2.Notice of the time, date, place and subject matter of the hearing was timely given
to all parties and Protestants.
3.Charles Lamar Felder, on behalf of Sam’s East Inc., d/b/a Sam’s Club #8278,
seeks a retail liquor license for the premises located at 1211A Woodruff Road, Greenville, South
Carolina (location). Mr. Felder is the General Manager of Sam’s Club #8278.
4.Mr. Felder is over the age of twenty-one. He has been a legal resident of the State
of South Carolina for the past three years, and he has maintained his principal place of abode in
the State of South Carolina for the same length of time. Mr. Felder possesses good moral
character.
5.Notice of the application was lawfully posted both at the location and in a
newspaper of general circulation.
6.Petitioner currently holds a beer and wine permit for off-premise consumption at
its Greenville location. Sam’s East Inc. also holds a retail liquor license for its location in North
Charleston, South Carolina and has another license pending for its location in Myrtle Beach,
South Carolina. Petitioner has not been issued more than three (3) retail liquor licenses, nor does
he have an interest, financial or otherwise, in more than three retail liquor stores.
7.Petitioner has approximately 140,000 members who come to the club to shop from all
over the city. It is the only Sam’s Club located in Greenville County.
8.The location is in a rapidly growing commercial area on Woodruff Road. There
are a number of other large retail businesses in operation and under construction in the area
where Petitioner is located, including Kohl’s, Lowe’s, Barnes and Noble, Best Buy, Linens N’
Things, and Hobby Lobby, among others. There are no residences, churches, schools or
playgrounds within five hundred (500) feet of the location.
9.If the license if granted, Petitioner plans to construct the liquor store contiguous
to its current location. However, there will be separate entrances for the liquor store and Sam’s
Club. Also, individuals who are not members of Sam’s Club may purchase from the liquor store.
10.Petitioner opened in June of 2002 and, other than traffic congestion, has operated
without any problems since that time. Petitioner also has between eight (8) and ten (10) deputies
from the Greenville County Sheriff’s Office on its payroll at all times to prevent any problems
from occurring at the location.
11.Protestants Sunil C. Fadia and Thomas M. Smith, both owners of retail liquor
stores in the area near the location, appeared at the hearing. However, only Mr. Smith offered
testimony.
12.Mr. Smith is the owner of a retail liquor store, All About Spirits, which is located
on Woodruff Road approximately two and one-half (2½) miles from the location. He has
operated his liquor store for approximately eighteen (18) months. At the hearing, he testified
that he objects to the license being issued because of the number of liquor stores already in
business in the area. Mr. Smith contends that the issuance of a retail liquor license to the
Petitioner would economically harm his business.
13.There are four (4) other retail liquor stores located along Woodruff Road, and a
total of eight (8) retail liquor stores located within a five mile radius of the 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. 2003) grants jurisdiction to the Administrative
Law Court to hear contested cases under the Administrative Procedures Act.
2.S.C. Code Ann. § 61-2-260 (Supp. 2003) grants the Administrative Law Court the
responsibilities to determine contested matters governing alcoholic beverages, beer and wine.
3.S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2003) sets forth the general
requirements for determining eligibility for a retail liquor license.
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. 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 of an applicant for alcohol
permits and licenses using broad but not unbridled discretion. Byers v. S.C. ABC Comm’n, 281
S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
5.The weight and credibility assigned to evidence presented at the hearing of a
matter is within the province of the trier of fact. See S.C. Cable Television Ass’n v. S. Bell Tel.
& Tel. Co., 308 S.C. 216, 222, 417 S.E.2d 586, 589 (1992); see also Doe v. Doe, 324 S.C. 492,
502, 478 S.E.2d 854, 859 (Ct. App. 1996) (holding that a trial judge, when acting as a finder of
fact, “has the authority to determine the weight and credibility of the evidence before him”).
Furthermore, a trial judge who observes a witness is in the best position to judge the witness’s
demeanor and veracity and to evaluate the credibility of his testimony. See Woodall v. Woodall,
322 S.C. 7, 10, 471 S.E.2d 154, 157 (1996).
6.Although "proper location" is not statutorily defined, 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 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 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, 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).
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 licensee 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).
8.Permits and licenses issued by this state for the sale of liquor, beer and wine are
not property rights. Rather, they are privileges granted in the exercise of the state’s police power
to be used and enjoyed only so long as the holder complies with the restrictions and conditions
governing them. The Administrative Law Court, as the tribunal authorized to grant the issuance
of a permit or license, is likewise authorized to revoke or suspend the permit or license for cause.
See Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
9.The ultimate crux of Mr. Smith’s protest is that he will be in direct competition
with this liquor store, a situation he is trying to prevent. Mr. Smith contends that the retail liquor
license should be denied because there is an over saturation of retail liquor outlets in the area of
the proposed location. S.C. Code Ann. § 61-6-170 (Supp. 2003) sets forth 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.” Furthermore, S.C. Code Ann. § 61-6-910(3)
(Supp. 2003) sets forth that “[t]he department must refuse to issue any license under this article
or Article 7 of this chapter if the department is of the opinion that…a sufficient number of
licenses have already been issued in this State, incorporated municipality, unincorporated
community, or other community.”
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). Based upon these statutes, I
find that the intent of the General Assembly in enacting Sections 61-6-170 and 61-6-910 was not
to ensure the economic viability of existing licensed retailers, but to safeguard the public health,
safety, and welfare of the citizens who live in the area. Notwithstanding a showing by Mr. Smith
that other licensed retail liquor stores exist within the area of the proposed location, he did not
provide any evidence to establish that the public safety, health and welfare of the citizens of this
state would be endangered or adversely affected by the issuance of a license in this case.
Therefore, the proposed location is suitable with respect to the provisions of Sections 61-6-170
and 910.
Accordingly, the Court finds that Petitioner meets all the statutory requirements for a
retail liquor store and authorizes the Department to issue the retail liquor license to Petitioner for
its location at 1211A Woodruff Road, Greenville, South Carolina upon the payment of all
required fees.
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 Sam’s East, Inc., d/b/a
Sam’s Club #8278, 1211A Woodruff Road, Greenville, South Carolina is GRANTED; and
IT IS FURTHER ORDERED that the Department resume processing the Petitioner’s
application and issue a retail liquor license to the Petitioner upon payment of the proper fees and
costs.
AND IT IS SO ORDERED.
_________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
February 10, 2005
Columbia, South Carolina |
