ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1994) and
S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1994) upon an application for a retail liquor
license filed with the Department of Revenue and Taxation (hereinafter referred to as "DOR") by
Robert O. Lee., for 1209 Byrnes Drive, St. Stephen, South Carolina. A hearing was held on
August 28, 1995. Petitioner and his manager, Dennis Brown, testified on behalf of Petitioner.
Testifying in opposition to the license were Claude M. Gunnels, Don Govan, Jr., and Homer
Montgomery. After careful review of the evidence and applicable law, the license is granted.
FINDINGS OF FACT
By a preponderance of the evidence, I find these facts:
(1) Applicant seeks a retail liquor license for a location at 1209 Byrnes Drive, St.
Stephen, South Carolina, having filed an application with DOR, AI #103642.
(2) Notice of the time, date, place, and subject matter of the hearing was given to
Petitioner, protestants, and DOR.
(3) DOR did not appear at the hearing, and did not indicate opposition to the issuance of
the license.
(4) The proposed location is within the municipal boundaries of the Town of St. Stephen.
(5) The proposed location is located on U.S. Highway 52, a commercial thoroughfare
being widened from two to four lanes.
(7) The proposed location is adjacent to and shares a common wall with a licensed
establishment known as the Pub.
(8) The Pub is a private club owned by Robert O. Lee, holding a club sale and
consumption license in Lee's name since March, 1994.
(9) The Pub was licensed, owned, and operated by another proprietor prior to Lee's
ownership.
(10) Dennis Brown, manager of the Pub, will also manage the proposed location.
(11) The proposed location is the former site of the St. Stephen Bus Station. The bus
station moved to another location in town after racial integration was instituted.
(12) A bait and tackle shop, licensed to sell beer and wine for on-premises consumption,
is located approximately 150 feet from the proposed location.
(13) Petitioner has been a resident of St. Stephen since 1968, and owns a motel, trailer
park, and "cut and sew" operation, in addition to the proposed location and adjoining Pub.
(14) Protestant Claude Gunnels operates the only existing retail liquor store in St.
Stephen.
(15) Gunnels previously owned and operated three retail liquor stores in the St. Stephen
area, including one location across the street form the proposed location.
(16) Gunnels closed two of the three locations because of lack of profits.
(17) No church, school, or playground is within three hundred (300') feet of the proposed
location.
(18) Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina,
and has maintained his principal residence in South Carolina for more than thirty days.
(19) Applicant has not had a permit/license revoked in the last five years.
(20) Applicant is of good moral character.
(21) 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.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1994) provides that the South Carolina
Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of
Title I of the 1976 Code, as amended.
(2) The issuance of retail liquor licenses are authorized under the provisions of S.C. Code
Ann. § 61-3-410(3) (Supp. 1994).
(3) A permit or license must not be issued if an applicant does not meet the standards of
S.C. Code Ann. § 61-3-730 (Supp. 1994).
(4) S.C. Code Ann. § 61-3-440 (Supp. 1994) dictates that a retail liquor store located
within a municipality must be a minimum of three hundred (300') feet from any church, school, or
playground. 23 S.C. Code Ann. Regs. 7-11 (1976) provides the method for measuring the
distances referred to in § 61-3-440. No schools, churches, or playgrounds are within the
prescribed proximity to render the proposed location unsuitable.
(5) 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 liquor license using broad but
not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 316 S.E.2d 705 (Ct.App.
1984).
(6) 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).
(7) The proposed location is suitable for the purpose of operating as a retail liquor store
in light of the commercial nature of the area and the proximity of other licensed locations. Any
racial discrimination on the part of former owners of the proposed location should not be
attributed to Petitioner or to the proposed business activity or location.
(8) Applicant meets the statutory requirements for issuance of a retail liquor license.
ORDER
IT IS THEREFORE ORDERED that DOR issue the retail liquor license applied for by
Petitioner.
_________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
September 11, 1995
Columbia, South Carolina |
