ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code §61-1-55 (Supp. 1993) and §1-23-310
et seq. upon an application for a retail liquor license for 102 Lakeview Blvd., Hartsville, South
Carolina, by William R. Harrell and Hal V. Byrd, d/b/a Lakeview Spirits filed with the Department
of Revenue and Taxation (DOR). A hearing was requested by the applicants upon the receipt by
DOR of a written protest. A hearing was held on May 6, 1994, in accordance with the
Administrative Procedures Act with notice to all parties and protestants. The issues considered were
the applicants' eligibility to hold a permit; the suitability of the proposed business location; and, the
nature of the proposed business activity. The license is ordered to be issued.
FINDINGS OF FACT
The applicants seek a retail liquor license for a location at 102 Lakeview Blvd., Hartsville,
South Carolina, having filed an application with DOR, AI no. 97270, on January 17, 1994.
Notice of the time, date, place, and subject matter of the hearing was given to the applicants,
protestants, SLED, and DOR. The following protestants were present and testified in
opposition to the application at the hearing: Donald C. Purvis, pastor of Lakeview Baptist Church;
Warren Arthur, a local resident and owner of the vacant property across the street from the proposed
location; and, State Representative Denny Neilson.
I find that the applicants are over twenty-one years of age, are citizens of the State of South
Carolina, and have maintained their principal residence in South Carolina for more than one year. The
applicants have not had a permit or license revoked in the last five years. The applicants, who intend
to manage the business, are of good moral character.
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 proposed location for fifteen
days.
The location is on the corner of the intersection of Lakeview Blvd. and N. 5th Street, a four
lane thoroughfare, in a small shopping mart which also contains a gas and convenience store which
has an off-premises beer and wine permit and a Domino's Pizza establishment. On the other corners
are a vacant lot which formerly was the site of a gas and convenience store which held a beer and
wine permit, a motel, and the American Legion boat ramp and swimming area on Prestwood Lake.
A number of commercial businesses are in close proximity to the location, especially along N. 5th
Street.
The protestants offered testimony that the proposed site is unsuitable for a license on the
grounds that traffic would increase in the area and become more hazardous, parking is inadequate,
intoxicated persons would be more likely to be present and possibly driving in the area, crime would
increase, surrounding property values would decrease, and the residential area would suffer. I find
those assertions speculative and without evidntiary basis.
Protestants also argue that the location is in close proximity to schools, churches, residences,
and a playground. Pastor Purvis asserted that the American Legion boat ramp and swimming area
is a "playground" for purposes of S.C. Code §61-3-440 (Supp. 1993). The proposed location is
within the city limits of Hartsville and zoned for commercial use. No church, school, or playground
is within three hundred feet of the proposed location. The American Legion boat ramp and swimming
area, which is within three hundred feet of the store, is enclosed by a cyclone fence and locked gate.
It is for use by dues paying members of the American Legion and their guests. It is not a facility
available for recreation by the public at large, but rather a private facility. Lakeview Baptist Church,
the closest church to the proposed location, is .2 miles away. A residential area is between the
location and the church.
The store front of the proposed location is obscured from the road by being in the inner part
of an "L" shaped shopping center and having two large shrubs, two brick columns, and a sidewalk
in front of it. The shopping mart is separated from the residential area to its rear by a sloped
landscaped embankment.
Based upon an affidavit by Richard F. Ritch, Director of Public Safety for the City of
Hartsville, that the area surrounding the proposed location "... is heavily patrolled and is provided
excellent police protection," I find that the location has adequate police protection.
The area is appreciably commercial in nature. The proposed location is next door to a store
with an off-premises beer and wine permit. The existence of a retail liquor store in the shopping mart
will not significantly change the area's nature.
Accordingly, I find the proposed location and business activity are suitable and proper and
an issuance of a retail liquor license would not have an adverse effect on the surrounding community.
CONCLUSIONS OF LAW
S.C. Code §61-1-55 (Supp. 1993) provides that the South Carolina Administrative Law Judge
Division is empowered to hear all cases previously heard by the now defunct Alcoholic Beverage
Control Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.
In regard to the issuance of a retail liquor license, S.C. Code §61-3-420 (Supp. 1993)
provides:
Unless the department in its discretion otherwise orders, no person is eligible for a license ...
if he or the person who will have actual control and management of the business proposed to be
operated:
(1) is less than twenty-one years old;
(2) is not a legal citizen of the United States and has not been a resident of South Carolina
for at least thirty days before the date of application and has maintained his principal place of abode
in South Carolina for at least thirty days before this date;
(3) is not of good repute;
(4) has not had a license ... revoked within ... five years....
Notice requirements in S.C. Code §61-3-490 (Supp. 1993) must also be met by the applicants.
In addition, a license must not be issued under S.C. Code §61-3-730 (Supp. 1993) if the applicant
is not a suitable person to be licensed; the place of business is not a suitable place; or a sufficient
number of licenses have already been issued in the State, municipality, or community.
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
Commission, 317 S.E.2d 476 (S.C. 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
using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d 705
(S.C. 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.
The issue of the morality of the sale and consumption of alcohol and its effects was raised by
both a protestant and the applicants (through cross-examination of protestants Arthur and Purvis).
The issue was raised by Mr. Arthur as a factor to be considered in determining whether a license
should be granted. It was raised again by counsel for the applicants in an attempt to show the
motives of the protestants. I conclude that the issue is irrelevant from either perspective.
In determining whether a proposed location is suitable 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, on which the location may be found to be unsuitable and a license denied. William G. Byers
v. S.C. ABC Commission, ___ S.C. ___, 407 S.E.2d 653 (1991). The determination is not
necessarily a function solely of geography, however. It may involve 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. 335 (1985).
At issue in the present case is whether S.C. Code §61-3-440 (Supp. 1993) is applicable as a
statutory basis for denial of the issuance of the license. That code section prohibits the licensing of
a liquor store within three hundred feet of a church, school, or playground. Protestants assert that
the boat ramp fits the statutory description of playground and is within three hundred feet of the
proposed location. "Playground" is statutorily defined in §61-3-440(3) as "a place, other than
grounds at a private dwelling, which is provided by the public or members of a community for
recreation." As boating and swimming are obvious recreational activities, the question then becomes
whether the facility is provided by the public or members of the community.
The American Legion is a private organization. And while the statute is silent as to whom
the place may or must be provided, "provide" in its normal usage, means "to make, procure, or
furnish for future use, prepare; to supply; to afford; to contribute; to make available." Black's Law
Dictionary, Fourth Edition, 1951; American Heritage Dictionary, 1976. The connotation is that the
recreation facility must be made available or afforded to some person or persons other than the group
providing the amenities. With a fence and locked gate, it can hardly be said that the facilities are
afforded to or made available to anyone except a member of the organization with a key to enter the
gate. In that context, I conclude that the American Legion boat ramp and swimming area is not a
playground as defined by §61-3-440(3).
I conclude that the applicants have carried their burden of proof in establishing that
they meet the requisite standards for issuance of the license applied for.
IT IS THEREFORE ORDERED that DOR issue to the applicants a retail liquor license upon
payment of the prescribed fee.
___________________________
STEPHEN P. BATES
Administrative Law Judge
May 18, 1994
Columbia, South Carolina |
