ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) for a contested case hearing.
Petitioner Mogee Enterprises, LLC, seeks a retail liquor license for a liquor store to be known as
Buffalo ABC, adjoining its existing pawn shop at 933 Main Street in Buffalo, South Carolina. The
South Carolina Department of Revenue (Department) would have granted the permit, upon the
completion of a final inspection of the renovated premises, but for the protests filed by Mr. Glenn P.
Caldwell and Ms. Frances W. Mitchell regarding the suitability of the store’s location. Accordingly,
the Department was excused from the hearing of this matter.
After notice to the parties and the protestants, a hearing of this case was held on May 29,
2003, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the
evidence presented concerning the suitability of the proposed location and the applicable law, I find
that Petitioner’s application for a retail liquor license should be granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing
of this matter, and taking into account the credibility and accuracy of the evidence, I make the
following Findings of Fact by a preponderance of the evidence:
1.James E. Harris, Jr., and his mother, Vicki C. Morgan, co-owners of Petitioner Mogee
Enterprises, LLC, submitted an application for a retail liquor license on behalf of Mogee Enterprises
to the Department in January 2003 for the premises located at 933 Main Street, Buffalo, South
Carolina. This application is hereby incorporated into the record by reference.
2.The proposed store is located in the unincorporated community of Buffalo, South
Carolina, along Highway 215, a major highway and thoroughfare running between Buffalo and Union,
South Carolina.
The building housing the store is situated on a four-acre tract of land in a largely
commercial area of Buffalo, with some fifteen to twenty businesses located within two miles of the
store. The commercial building and the four-acre tract, which also contains a mobile home park, are
owned by Ms. Morgan, who leases the building to Mogee Enterprises. The building has recently been
renovated to bring it to commercial standards and to improve its security features, and Mogee
Enterprises currently operates a pawn shop, known as Buffalo Pawn and Gun, out of one-half of the
building. The proposed store is situated some fifty yards off the highway and has parking for
approximately fifteen vehicles.
3.Mr. Harris and Ms. Morgan are over twenty-one years of age, are citizens of the
United States, and have resided and maintained their principal place of abode in South Carolina for
at least thirty days prior to submitting their application for a retail liquor license.
4.Mr. Harris and Ms. Morgan are persons of good moral character. The criminal
background investigation of Mr. Harris and Ms. Morgan conducted by the South Carolina Law
Enforcement Division (SLED) did not reveal any criminal violations for either Mr. Harris or Ms.
Morgan, and the record in this case does not indicate that they have engaged in acts or conduct
implying the absence of good moral character.
5.Neither Mr. Harris nor Ms. Morgan have had a permit to sell beer or wine or a license
to sell alcoholic liquors suspended or revoked within the five years preceding the filing of their
application for a retail liquor license.
6.The premises to be licensed are not located within five hundred feet of any church,
school, or playground.
7.No other members of Mr. Harris’ or Ms. Morgan’s households have been issued retail
liquor licenses. Further, Mr. Harris and Ms. Morgan have not been issued more than three retail
liquor licenses, nor do they, their relatives, or any partnership, association, or corporation in which
they are involved have an interest, financial or otherwise, in more than three retail liquor stores.
8.Notice of Petitioner’s application was published in The Union Daily Times, a weekly
newspaper published and circulated in Union County, South Carolina, for three consecutive weeks,
and proper notice of the application was posted at the proposed location for fifteen days.
9.The nearest residences to the proposed location are the mobile homes located in the
mobile home park owned by Ms. Morgan and a residence owned by Mr. Harris’ first cousin situated
approximately 75 yards from the location on the other side of Highway 215. There are no other
residences in the immediate vicinity of the proposed location.
10.Mr. Glenn Caldwell and Ms. Frances Mitchell, two Buffalo residents, filed protests
against Petitioner’s application. Both Mr. Caldwell and Ms. Mitchell testified that they are generally
opposed to the sale of liquor and that they are concerned about the potential adverse impact the sale
of liquor at the location will have upon the Buffalo community, and in particular, upon the elderly
residents of Buffalo.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the Administrative Law Judge Division
pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986
& Supp. 2002).
2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the
sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v.
S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984);
see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.S.C. Code Ann. §§ 61-6-110 and 61-6-120 (Supp. 2002) establish the basic criteria
for determining eligibility for a retail liquor license. Additional requirements are set forth in S.C.
Code Ann. §§ 61-6-130 to 61-6-190 (Supp. 2002). Further, S.C. Code Ann. § 61-6-910(2) (Supp.
2002) 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.Although “suitable place” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of a particular location for the requested license.
See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
5.The determination of suitability of location is not necessarily solely a function of
geography. Rather, it involves an infinite variety of considerations related to the nature and operation
of the proposed business and its impact on the community within which it is to be located. Kearney
v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
6.Further, “a liquor license or permit may 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).
7.However, without sufficient evidence of an adverse impact on the community, a
license application must not be denied if the statutory criteria are satisfied. And, the fact that the
issuance of a permit or license is protested is not a sufficient reason, by itself, to deny the application.
See 48 C.J.S. Intoxicating Liquors § 119 (1981).
8.Moreover, the denial of a license or permit to an applicant on the ground of
unsuitability of location is without evidentiary support when relevant testimony of those opposing the
requested license or permit consists entirely of opinions, generalities, and conclusions not supported
by the facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504,
189 S.E.2d 301 (1972).
9.In making a decision in this matter, this tribunal is constrained by the record before
it and the applicable statutory and case law. Here, Petitioner Mogee Enterprises and its principals,
Mr. Harris and Ms. Morgan, meet all of the statutory criteria enacted by the South Carolina General
Assembly for the issuance of a retail liquor license, and there has not been a sufficient evidentiary
showing that the proposed location is unsuitable for Petitioner’s business or that the issuance of the
license would create problems in or have an adverse impact upon the surrounding community. The
protestants’ opposition to Petitioner’s license primarily stems from their moral objection to the sale
of alcoholic beverages and their largely speculative concern that the sale of alcohol in their community
will have a significant adverse impact upon its residents. This tribunal acknowledges the protestants’
right to object to the license in question and respects their opposition to the issuance of the license.
However, mere aversion to the sale of alcoholic beverages is not within the statutory grounds for the
denial of an application for a retail liquor license, and the protestants’ concerns about their
community, while sincere, are too general and too speculative to support the denial of Petitioner’s
application. Therefore, while this tribunal is respectful of the protestants’ position, their arguments
do not constitute a sufficient, concrete basis upon which to deny Petitioner’s application for a retail
liquor license at the proposed location.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department of Revenue shall continue to process
Petitioner’s application for a retail liquor license for the premises located at 933 Main Street, Buffalo,
South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
June 10, 2003
Columbia, South Carolina |