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. |