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:
Island Spirits, Inc. vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Island Spirits, Inc., 45 Pembroke Drive
Suite 125
Hilton Head Island, SC

Respondent:
South Carolina Department of Revenue

Respondent-Intervenor:
John M. Lane, III
 
DOCKET NUMBER:
02-ALJ-17-0431-CC

APPEARANCES:
James H. Harrison, Esquire, for the Petitioner

Jeffrey M. Nelson, Esquire, for the Respondent

Kenneth E. Allen, Esquire, for the Respondent-Intervenor
 

ORDERS:

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §§ 61-6-100 et seq. (Supp. 2001), § 61-6-910 (Supp. 2001), and §§ 1-23-310 et seq. (1986 and Supp. 2001) for a contested case hearing. The Petitioner, Island Spirits, Inc., seeks a retail liquor license. The Department of Revenue (Department) made a Motion to be Excused stating that it had submitted all relevant information it had in the Agency Transmittal. This Motion was not granted. The Respondent-Intervenor, Mr. John Lane, filed a Motion to Intervene on October 11, 2002. This Motion was granted. A hearing was held on this matter on January 10, 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 and taking into consideration the burden of persuasion upon the parties, 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 Respondent-Intervenor.

2. The Petitioner, Island Spirits, Inc., is seeking a retail liquor license. The proposed location is 45 Pembroke Drive, Suite 125, Hilton Head Island, South Carolina. Kimberly Lutian is the president of Island Spirits, Inc..

3. The qualifications set forth in S. C. Code Ann. § 61-6-110 (Supp. 2001) concerning the age, residency, and reputation of Ms. Lutian are properly established. Furthermore, Ms. Lutian 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 in a newspaper of general circulation.

4. Ms. Lutian 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.

6. No other member of the Ms. Lutian'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 she have an interest, financial or otherwise, in more than three retail liquor stores. She owned a licensed business, a restaurant and bar, from 1999 through 2002, and was not cited for any alcohol violations during that time.

7. All partes stipulated that the Applicant, Ms. Lutian, is qualified to own and operate

a retail liquor store, and that the proposed location is suitable under the statute. The only issue concerns the Respondent-Intervenor's contention that there are already a sufficient number of retail liquor stores in the area.

8. Mr. Lane owns two retail liquor stores on Hilton Head Island, Reilley's Wine and Spirits and Reilley's on Main. He testified that the liquor market is flat, and that the "liquor industry" recommends one store per twenty thousand residents. He did not introduce any study or documentation that supports this contention, however.





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. 2001) 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. 2001) grants the Division the responsibility to determine contested matters governing alcoholic beverages, beer and wine.

2. S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2001) 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 not be denied 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.

  • The Respondent-Intervenor asked the Court to take Judicial Notice of the recent case

of Hanna v. South Carolina Department of Revenue and Bob Sherr, 01-ALJ-17-0175 (2001). While the Court is aware of this case, and its statement that the liquor industry recommends one store per twenty thousand residents, the factual scenarios in Hanna and the instant case are inapposite. Hanna dealt with a store on Decker Boulevard in the Dentsville area of Columbia, South Carolina. The Dentsville area is in decline; stores are vacant and many businesses are moving further out Two Notch Road. In the instant case, both parties, the Petitioner and the Intervenor, admit that Hilton Head is a resort area with a large number of tourists (1). Both parties presented statistical information; the Petitioner's from the Hilton Head Chamber of Commerce showing the number of visitors, both day and overnight, to the Island, and the Respondent-Intervenor's statistics from the South Carolina Department of Tourism. The Intervenor contends that these numbers show that tourism is down. His statistics are through 2000. The Petitioner, however, has statistics through October, 2002, showing that tourism is rebounding on Hilton Head. The Petitioner contends, and this Court finds, that the overall depression of tourism following September 11, 2001, certainly affected Hilton Head Island. It seems, however, that tourism is on the rebound, and that the expenditures by tourists remain high. The factual differences between Hanna and the instant case are significant and controlling.

6. The Petitioner meets the statutory requirements for holding a retail liquor license at the proposed location, and the Respondent-Intervenor has failed to carry his burden of proof that the community is already adequately served as specified in SC Code Ann. §61-6-170 (Supp. 2001).



ORDER

Based upon the above Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the Department of Revenue complete its processing of the Petitioner's application for a retail liquor license at 45 Pembroke Drive, Suite 125, Hilton Head Island South Carolina, and that the license be granted upon the Petitioner's payment of the required fees and costs.



AND IT IS SO ORDERED.





_______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge





February 5, 2003

Columbia, South Carolina

1. In the Hanna opinion, the Court relied upon the fact that there were only 29,000 residents in the area to be served by that proposed retail liquor store. Testimony and exhibits introduced at this hearing established that there are currently 10 retail liquor stores currently operating in the town of Hilton Head Island, which has a base population of 34,000 residents. However, Hilton Head Island's tourism industry was host to more than 2,261,000 overnight visitors and another approximately 500,000 visitors who came to the Island for a day. These figures overwhelmingly refuted the Respondent-Intervenor's contention that the Island is insufficiently populated to support another retail liquor store.


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court