South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Freddie Powell, Jr., d/b/a Our Liquor Store vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Freddie Powell, Jr., d/b/a Our Liquor Store
615 Main Street N., New Ellenton SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
03-ALJ-17-0322-CC

APPEARANCES:
Freddie Powell, Jr., Pro Se, for the Petitioner

Dana R. Krajack, Esquire, for the Respondent

Reverend David Holdman, for the Protestant, Grace Covenant Church of God
 

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 Footnote . 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


Brown Bldg.

 

 

 

 

 

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