ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code §
61-3-410, et.seq. and § 1-23-310, et.seq., upon an application by
William Leopard and William Suddeth for a retail liquor license at
his business, Dave's, located at 599 Old Hundred Road in Pelzer.
A hearing was requested by petitioners after they received notice
from the Department of Revenue and Taxation (department) of a
written protest. The hearing was conducted on May 2, 1994, after
notice to all the parties in accordance with the Administrative
Procedures Act. The issues presented are: the petitioners'
eligibility to hold a license; the suitability of the proposed
location; and the nature of the proposed location.
FINDINGS OF FACT
The petitioner, Leopard, currently operates a "family
oriented" convenience store that sells groceries, deli-type items,
and beer and wine for off premises consumption. The convenience
store was operated at this location for 18 years by Suddeth and
during the last six years Leopard has operated the store and sold
beer and wine without incident.
On October 15, 1993, Leopard and his partner, Suddeth,
completed an application for retail liquor license with the
department. Pictures introduced into evidence show the interior
and exterior of the convenience store and the proposed retail
store. The proposed retail liquor store is located in a 22' by 10'
space that was added to the convenience store by Leopard. There is
separate access to the proposed liquor store through an outside
door. There are no other entrances or exits in the proposed store
and there are no windows. Both Leopard and Suddeth would manage
the liquor store. The hours of operation would be nine o'clock in
the morning to seven o'clock in the evening, six days a week.
The business is located in a primarily rural and farming
community. Within the immediate area there are a few houses,
farms, and a group home for persons with mental retardation is
approximately one-fourth mile. Located within a two mile radius of
the store is the Church of God and Perry Correctional Facility and
within five miles is a school. The closest retail liquor stores
are six to seven miles from the proposed location.
The Old Hundred Community is located in a part of Greenville
County that has the lowest crime. In the ten years that Mr. Albert
Sweeney, a patrolman from the Greenville County Sheriff's
Department, has been patrolling the area he has never had a call to
the location of the store and he feels that adequate police
protection is provided to this location.
Approximately 25 to 30 area residents appeared at the hearing
to protest the issuance of the license to this location. Three
residents testified and objected to the license because of the
potential for increased traffic flow and fear of increase crime.
There were no complaints regarding the petitioner's moral character
or business practices.
Petitioners are residents of the state, over the age of 21,
have never had any license issued pursuant to Title 61 dealing with
alcoholic liquors, beer and wine suspended or revoked, and are of
good moral character and repute. Notice of the application
appeared in a newspaper of general circulation in the area of the
proposed location for three consecutive weeks and was posted at the
location for fifteen days. The petitioners posted a bond with the
application.
The parties reviewed the file of the Department and stipulated
to its admission into the record for this court to consider as
evidence. The petitioners objected to any letters of protect
written after February 15, 1994, the date originally scheduled for
a hearing on this matter and to the signature petition attached to
a letter submitted by Mrs. Donna Alverson. These documents were
not admitted into the record instead the court took notice of the
community sentiment as evidenced by the twenty-five to thirty
people who appeared at the hearing to protest the issuance of the
license.
CONCLUSIONS OF LAW
Ordinarily, the issuance of a liquor license rests within the
sound discretion of the body or official to whom the duty of
issuing is committed. Wall v. S.C. Alcoholic Beverage Control
Commission, 269 S.C. 13, 235 S.E.2d 806 (1977). S.C. Code §
61-1-55 provides that all powers, duties, and responsibilities of
the former Alcohol Beverage Control Commission and hearing officers
are assumed by the South Carolina Administrative Law Judge Division
pursuant to the Administrative Procedures Act. S.C. Code of Laws
§ 61-1-55 (Cum. Supp. 1993).
A retail license must not be issued to a person who will have
actual control and management of the business if he is under 21
years of age; is not a resident for at least 30 days prior to his
application; is not of good repute; or has had a license regulating
the sale of alcoholic liquors revoked within five years preceding
his application. S.C. Code of Laws § 61-3-420 (Cum. Supp. 1993).
Petitioner meets the statutory requirements to be eligible for a
license.
In addition, Section 61-3-440 provides that no new licenses
may be granted if the place of business is located within five
hundred feet of any church, school, or playground situated outside
of a municipality. S.C. Code of Laws § 61-3-440 (Cum. Supp. 1993).
Suitability of the location for the proposed business is therefore
a proper criteria in determining whether to issue the license. In
this case, the proposed location is not within close proximity of
a church, school, or playground. In fact, none of these
organizations appeared to protest the issuance of a license to
Petitioner.
Whether there is adequate and proper police protection for an
intended retail liquor store is also a proper consideration. Terry
v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). The evidence
establishes that this area of Greenville County has adequate police
protection.
CONCLUSION
Based upon the foregoing facts as applied to the law stated,
Petitioner, William Dave Leopard is a suitable person to be issued
a retail liquor license and "Dave's" is a suitable business and
location for the retail sale of alcoholic liquors.
IT IS THEREFORE ORDERED that the Department issue to the
petitioner a retail liquor license upon payment of the prescribed
fee.
____________________________
ALISON RENEE LEE
Administrative Law Judge
Columbia, South Carolina
May __, 1994. |
