ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Judge Division (Division) pursuant to
S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2002), § 61-6-910 (Supp. 2002), and §§ 1-23-310 et
seq. (1986 and Supp. 2002) for a contested case hearing. The Petitioner, Freddie Powell, Jr.,
d/b/a Our Liquor Store, seeks a retail liquor license. The Respondent notes that the building
housing the proposed location has not been renovated completely and would need a final
inspection prior to the issuance of the license, if one were so ordered. The Protestant has raised
concerns about the suitability of the location in light of the proximity of his church, as well as the
number of beer and wine permits and retail liquor licenses in the area. A hearing was held on
this matter on September 2, 2003, at the offices of the Division in Columbia, South Carolina.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed
upon their credibility, taking into consideration the burden of persuasion by the parties and the
Protestant, I make the following Findings of Fact by a preponderance of evidence:
1.Notice of the time, date, place and subject matter of the hearing was given to the
Petitioner, the Respondent, and the Protestant.
2.The Petitioner, Freddie Powell, Jr., d/b/a Our Liquor Store, is seeking a retail
liquor license. The proposed location is 615 Main Street North, New Ellenton, South Carolina.
3.The qualifications set forth in S. C. Code Ann. § 61-6-110 (Supp. 2002)
concerning the age, residency, and reputation of Mr. Powell are properly established.
Furthermore, Mr. Powell 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 published
in a newspaper of general circulation, as required by § 61-6-180.
4.Mr. Powell has no criminal record and is of sufficient moral character to receive a
retail liquor license.
5.There was no evidence that the proposed location is within three hundred feet of
any church, school or playground, as provided in § 61-6-120 (A).
6.No other member of the Mr. Powell’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.
7.Mrs. Endia Nipper testified for the Petitioner, stating that when the protest
was received, she mapped the distance from the Grace Covenant Church of God to the proposed
location
. Her measurements indicated that the church was outside the statutorily proscribed
distance.
8. The Department stated that but for the protest, the license would have been issued
subject to the final inspection by SLED when renovations to the building are completed.
9.The Protestant addressed the Court. Reverend Holdman was particularly
concerned about proximity to the church and the number of existing alcohol licenses in the area.
He stated that there had been problems with crime in the past in the community, although none
currently. The Protestant’s convictions are strong; however, his arguments do not rise to the level
of adequate grounds to prevent issuance of the license.
10. I find the proposed location to be suitable for a retail liquor license.
CONCLUSIONS OF LAW
Based upon the above Findings of Fact, I conclude the following as a matter of law:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the Administrative
Law Judge Division to hear contested cases under the Administrative Procedures Act.
Furthermore, S.C. Code Ann. § 61-2-260 (Supp. 2002) grants the Division 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.Although “proper location” is not statutorily defined, broad discretion is vested in
the trier of fact in determining the fitness or suitability of a particular location. Fast Stops, Inc. v.
Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). As the trier of fact, the Administrative Law Judge
is authorized to determine the fitness or suitability of the proposed business location for a license
to sell liquor using broad, but not unbridled, discretion. Byers v. South Carolina ABC
Commission, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). The determination of suitability of
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 upon
the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335
(1985). Additionally, without sufficient evidence of an adverse impact on the community, the
application must be granted 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.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, et al. , 261 S.C. 168, 198 S.E. 2d 801 (1973). There was no
testimony or other evidence submitted as to the specific adverse impact that the granting of this
particular license would have on the community. There were no concrete facts or incident reports
submitted, only concerns by the Protestant.
6.The Petitioner meets the statutory requirements for holding a retail liquor license
at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the retail liquor license of Petitioner Freddie Powell,
Jr., d/b/a Our Liquor Store for the location at 615 Main Street N., New Ellenton, South Carolina,
be granted upon the Petitioner’s payment of the required fees and costs, and upon final inspection
by the State Law Enforcement Division under SC Code Ann. § 61-6-1510 (Supp. 2002).
AND IT IS SO ORDERED.
_______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
September 3, 2003
Columbia, South Carolina |