ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner Columbia
Fine Wine, Inc., d/b/a Total Wine & More (“Petitioner”), for a retail liquor license for a location at
275 C-2 Harbison Boulevard, Columbia, South Carolina. Upon receipt of a written protest to the
application, the South Carolina Department of Revenue (“Department”) transmitted the case to the
Administrative Law Judge Division (“ALJD”) for a hearing. After timely notice to the parties and
the Protestant, a contested case hearing was held on July 11, 2003, at the offices of the ALJD in
Columbia, South Carolina. The Department was excused from attending the hearing. Upon review
of the relevant and probative evidence and applicable law, the application for a retail liquor license
is granted upon passing an inspection performed by the South Carolina Law Enforcement Division
(“SLED”) of the finished facility to satisfy the requirements of the law.
FINDINGS OF FACT
Having carefully considered all testimony 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.Notice of the time, date, place, and subject matter of the hearing was given to all
parties and to the Protestant in a timely manner. The Protestant appeared pro se. This tribunal
inquired at the beginning of the hearing as to whether the Protestant was prepared to go forward with
the hearing, and the Protestant affirmed that he was ready to proceed.
2.Petitioner seeks a retail liquor license for the subject location of 275 C-2 Harbison
Boulevard, Columbia, South Carolina.
3.The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2002) concerning
the age, residency, and reputation of the Petitioner are properly established. Furthermore, the
Petitioner has not had a license for the sale of alcoholic liquors revoked within the last five years, and
notice of the application was lawfully posted both at the location and in a newspaper of general
circulation.
4.The Petitioner has no criminal record and is of sufficient moral character to receive
a retail liquor license.
5.No other member of Petitioner’s household has been issued a retail liquor store
license. Additionally, the Petitioner has not been issued more than three retail liquor licenses, nor does
he have an interest, financial or otherwise, in more than three retail liquor stores.
6.There is no evidence that the proposed location is within five hundred feet of any
church, school, or playground.
7.The proposed retail liquor store is located in a commercial shopping center on
Harbison Boulevard in a space that was previously occupied by a Bi-Lo grocery store, which had an
off-premises beer and wine permit. Ample parking is located in the shopping center for the proposed
business and its neighboring businesses. According to testimony from two of the Petitioner’s
witnesses, the proposed business is located in a “trade area” extending from the Target store on
Harbison Boulevard to the intersection of I-26 with Harbison Boulevard. This trade area is
compromised of approximately 2.3 million square feet of retail outlets, the largest retail hub in a
concentrated area in South Carolina. Located across the street from the proposed business are
several restaurants which have on-premises beer and wine permits and on-premises sale and
consumption (“minibottle”) licenses, including Outback, Olive Garden, and Chiles. Nearby are also
several business with off-premises beer and wine permits, including Publix, Wal-Mart, and Sam’s.
However, at this time there is no retail liquor store located in this trade area on Harbison Boulevard.
Thus, if the Petitioner’s application for a retail liquor license is granted, Petitioner’s will be the only
retail liquor store in the entire shopping area along Harbison Boulevard.
8.A SLED investigation of the Petitioner’s establishment to determine whether it
complied with the applicable laws revealed that construction was underway and that a final SLED
inspection would be needed to determine whether there is any interior access between the proposed
permitted premises and living quarters or another business and whether the establishment otherwise
complies with S.C. Code Ann. § 61-6-1510 (Supp. 2002).
9.The Department was excused from the hearing on the basis of its motion indicating
that it would have issued the license in question but for the unanswered questions of the suitability
of the location raised by the Protestant. The Department’s file on the Petitioner’s application was
admitted into evidence at the hearing.
10.The Protestant is a respected businessman who operates a retail liquor store in the St.
Andrews area of Columbia, South Carolina. Although the Protestant stated that he believes the
Petitioner to be a quality beverage retailer, he testified that there have been a lot of new applications
for retail liquor stores in Columbia in the past couple of years, yet he has not seen an increase of
population such as to demand a greater supply of retailers. Petitioner is concerned primarily with the
number of retail liquor store applications that the Department is granting in the metropolitan area of
Columbia and the way that will affect the market. The Protestant stated, however, that there is
currently no retail liquor store in existence in the Harbison shopping area.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law, the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann.
§ 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters
governing alcoholic beverages, beer, and wine.
2.S.C. Code Ann. § 61-6-110 et seq. (Supp. 2002) sets forth the requirements for
determining eligibility for a retail liquor license.
3.Licenses issued by the State for the sale of beer, wine, and liquor are not rights or
property, but are rather privileges granted in the exercise of the police power of the State to be used
and enjoyed only so long as the restrictions and conditions governing them are complied with. As
the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it,
that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v.
S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
4.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 license 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).
5.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 or suitability of the proposed business
location of an applicant for a retail liquor license using broad but not unbridled discretion. Ronald
F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact
finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance
and weight of any testimony and evidence offered.
6.Although “proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). The determination of suitability of a 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 on the community within which it is to be located.
Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may
be considered. The proximity of a location to a church, school or residences is a proper ground by
itself upon which the location may be found to be unsuitable and a license denied. Byers v. S. C.
ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there
have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984).
7.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, 261 S.C. 168, 198 S.E.2d 801 (1973).
8.S.C. Code Ann. Sec. 61-6-910 (Supp. 2002) sets forth, in relevant part:
The department must refuse to issue any license under this article or Article 7 of this
chapter if the department is of the opinion that:
. . .
(3) a sufficient number of licenses have already been issued in the 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). The intent of the General Assembly in
enacting S.C. Code Ann. § 61-6-910 was not to ensure economic viability of businesses already
licensed in the area, but to safeguard the public health, safety, and welfare of the citizens who live in
the area. See Monarch Enters., Inc., d/b/a Monarch Liquors v. S.C. Dep’t of Revenue, Docket No.
01-ALJ-17-0520-CC (ALJD, February 22, 2002). In this case, the evidence did not establish that the
public safety, health or welfare will be endangered by the issuance of a license in this case because
of a plethora of retail liquor stores. Moreover, though I do not find that the economic viability of
businesses already permitted in the area is a proper issue to consider, the evidence in this case firmly
establishes that there is no existing licensed retail liquor store in the trade area in which the
Petitioner’s business will be located. Therefore, the proposed location is not unsuitable pursuant to
S.C. Code Ann. § 61-6-910 (Supp. 2002).
9.Considering all relevant factors, I find that the proposed location is suitable for a retail
liquor license. I further find that the application for a retail liquor license should be granted, but only
upon the Petitioner first passing an inspection by SLED of the finished facility to satisfy the
requirements of the law.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner’s application for a retail liquor license for
the location at 275 C-2 Harbison Boulevard, Columbia, South Carolina, is granted upon passing an
inspection performed by SLED of the finished facility to satisfy the requirements of the law;
AND IT IS SO ORDERED.
________________________________________
C. Dukes Scott
Administrative Law Judge
July 11, 2003
Columbia, South Carolina |
