ORDERS:
ORDER OF DISMISSAL
This matter comes before me on the application of Dorothy J. Allen for a retail liquor license
and an off-premise beer and wine permit for Orange Liquor Store and Orange Party Shop located at
2480 Millwood Avenue in Columbia, South Carolina. The applicant requested a hearing upon notice
from the Department of Revenue and Taxation of its receipt of a protest from Dorethea Bull. After
notice to the parties, a hearing was conducted on August 8, 1995 pursuant to the Administrative
Procedures Act. The file of the Department was incorporated into the record and a copy substituted
for the original. Based upon the evidence in this case, the applicant is granted the retail liquor license
and off-premises beer and wine permit.
FINDINGS OF FACT
I make the following findings of fact, considering the burden on the parties to establish their
cases by a preponderance of the evidence and taking into account the credibility of the witnesses:
1. The Department of Revenue and Taxation does not object to the issuance of a retail
liquor license and an off-premises beer and wine permit to the applicant.
2. The applicant, Dorothy Allen is a 50 year old life long resident of South Carolina and
a legal resident of the United States.
3. The applicant does not have a criminal record and is person of good moral character.
The applicant's son and his girlfriend would assist in operating the proposed location. Neither has
been convicted of a crime.
4. She is currently operating the party shop at 2480 Millwood Avenue under a temporary
beer and wine permit issued by the Department. She does not have any other licenses or permits
issued by the Department and has never been cited for any violation of laws relating to the sale of
beer, wine or alcoholic liquors.
5. The location, 2480 Millwood Avenue in Columbia, was previously licensed for a
liquor store and party shop for 25 years. It is located on a major thoroughfare for vehicular traffic.
Millwood Avenue is a mixed commercial and residential street.
6. Three churches are in the vicinity. The closest one is 564 feet from the proposed
location. There are no schools or playgrounds near the location.
7. One resident is located within 150 feet for the proposed location and has voiced
objections to the application. These objections are based upon the operation of the business under
the previous license holder and include: use of profanity by patrons; loitering; litter; drug trafficking;
destruction of property; public urination; and the use of the parking lot as a path to the houses on
Green Street located adjacent to the location.
8. A fence divides the proposed location from the residence. Behind the location there
is an abandoned one story apartment building that has had the openings cemented. There is parking
available on all sides of the proposed location.
9. Eddie Lloyd, an activist in the Waverly community where the stores are located, also
objects to the application. He objects because there are several locations on Millwood Avenue and
in the vicinity of the proposed locations that sell liquor or beer and wine, the proximity of the
proposed locations to churches, and the establishment of another location would add to the crime in
an area already ridden with criminal activity.
10. Notice of the application was published for three weeks in the Star Reporter
newspaper and posted at the location for the requisite time period.
11. A surety bond was posted on the application for a retail liquor store as required.
12. A trash dumpster is located on the property next to the party shop, security lights are
on the top of the building and a street light is in front of the location.
13. The applicant met with members of the community to address any concerns about the
business and its operation.
14. Some of the activities complained of occur during hours when the location is closed
including Sunday.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge Division has jurisdiction to hear cases under the
Administrative Procedures Act. S.C. Code Ann. § 1-23-600 (Supp. 1994).
2. The Division has the powers, duties, and responsibilities of a hearing officer in
contested matter governing alcoholic beverages, beer and wine. S.C. Code Ann. § 61-1-55 (Supp.
1994).
3. The sole and exclusive power to grant a retail liquor license in a contested and
protested matter rests in the discretion of the Division. S.C. Code Ann. § 61-3-410 (Supp. 1994);
Wall v. S.C. Alcoholic Beverage Control Commission, 269 S.C. 13, 235 S.E.2d 806 (1977).
4. The criteria for the issuance of a retail liquor license are contained in Section 61-3-420. The applicant meets the statutory requirements for the issuance of a license.
5. No new licenses may be granted if the place of business is within three hundred feet
of any church, school or playground if the business is situated within the municipality or within five
hundred feet if the business is outside the municipality. S.C. Code Ann. § 61-3-440 (Supp. 1994).
The proposed location is not within proximity to any of these structures.
6. S.C. Code Ann. § 61-9-320 (Supp. 1994) provides the statutory requirements for the
issuance of beer and wine permits. Among the criteria is the prohibition against the issuance of a beer
and wine permit unless the proposed location is a proper one taking into consideration the proximity
to residences, schools, playgrounds and churches. S.C. Code Ann. § 61-9-320(6) (Supp. 1994). This
requirement does not apply to locations licensed before the effective date of that item. 1986 Act 374
effective April 21, 1986. This location has been licensed for over 25 years.
7. 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 operations 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. South Carolina ABC Commission, 276 S.C.
138, 276 S.E.2d 308 (1981).
8. Although "proper location" is not statutorily defined, broad discretion is vested in the
Division in determining the fitness or suitability of the proposed business location of an applicant for
a permit to sell beer and wine. Byers v. S.C. ABC Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
9. There has been no evidentiary showing that the present location is unsuitable or that
the issuance of an off-premise beer and wine permit would affect the residents' safety, create traffic
problems, or have an adverse impact on the community. The proposed location and the nature of the
business activity are suitable and proper given the commercial nature of Millwood Avenue.
10. 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 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).
11. 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 residents protest the issuance
of the permit and license is not a sufficient reason by itself to deny the application. See 45 Am. Jur.
2d Intoxicating Liquors § 162 (Supp. 1994); 48 C.J.S. Intoxicating Liquors § 119 (1981). The
grounds proffered by the protestors as justification for denial of the applicant's permit are speculative
and/or not supported by sufficient evidence.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the retail liquor license and off-premises beer and wine permit for the
location at 2480 Millwood Avenue, Columbia, South Carolina be granted to Dorothy Allen.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue a retail
liquor license and an off-premises beer and wine permit upon the payment of the required fees and
costs by the applicant.
AND IT IS SO ORDERED.
______________________________
ALISON RENEE LEE
Administrative Law Judge
September _____, 1995
Columbia, South Carolina. |
