ORDERS:
ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C. Code
Ann. §§ 1-23-310, et seq. (Supp. 1995) for a hearing on the application of Gary Herron.
Petitioner seeks a retail liquor license (AI 109845) for the Barnyard Bottle Shop, which is located
outside an incorporated municipality at 1714 Neeses Highway (Highway 4), Orangeburg County,
South Carolina.
After timely notice to the parties and protestants, a hearing was held at the Administrative Law
Judge Division, Columbia, South Carolina. Three protestants appeared at the hearing. The
protestants did not move to intervene as parties. The issues considered at the hearing were: (1)
petitioner's eligibility to hold a retail liquor license; (2) the suitability of the proposed business
location; and, (3) the nature of the proposed business activity.
Petitioner's retail liquor license is hereby granted.
FINDINGS OF FACT
Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this
matter, and taking into account the credibility and accuracy of the evidence, I make the following
Findings of Fact by a preponderance of the evidence:
1. Petitioner seeks a retail liquor license for the Barnyard Bottle Shop which is under construction
and will be located outside an incorporated municipality at 1714 Neeses Highway (Highway 4),
Orangeburg County, South Carolina.
2. Petitioner's application to the South Carolina Department of Revenue ("Department") was
made a part of the record by reference without objection.
3. The area surrounding the proposed location is rural and consists of a mixture of residential
dwellings and commercial development. To the immediate right of the proposed location (facing
the proposed location) are Amoco and BP gas stations, both of which have off-premises beer and
wine permits. A restaurant is also located in the immediate vicinity on the same side of the
highway.
4. No church, school or playground is within 500 feet of the proposed location.
5. Gospel Light Church and Liberty Freewill Church are located on the opposite side of Neeses
Highway from the proposed location. Pursuant to the method for measuring distance as
prescribed in S.C. Code Regs. 7-11 and 7-55, the Gospel Light Church is located 1269 feet away
from the proposed location and the Liberty Freewill Church is located 1879 feet away. The
nearest residence, that of protestant Gertrude Mixon, is located across the street at a distance of
547 feet from the proposed location.
6. Petitioner and Jayne Herron own the land where the proposed location is to be situated.
7. The State Law Enforcement Division ("SLED") completed a criminal background investigation
of petitioner Gary Herron. The SLED report revealed no criminal violations; and, petitioner has
not engaged in acts or conduct that imply the absence of good moral character. Petitioner has a
good reputation in the community.
8. Petitioner is at least 21 years of age, a U.S. citizen, a resident of the State of South Carolina,
and has maintained his principal residence in the State for at least thirty (30) days prior to the date
of making application for a retail liquor license.
9. Petitioner has not had a license for the sale or manufacture of alcoholic liquors revoked within
the five (5) year period preceding the filing of his application.
10. Notice of the application appeared in The Times and Democrat, a newspaper of general
circulation in the area of the proposed location, for three (3) consecutive weeks and notice was
posted at the proposed location for fifteen (15) days.
11. Petitioner nor anyone in his household currently holds an alcoholic liquors license.
12. The Department did not oppose petitioner's application.
13. The protestants testified in opposition to the license in question. As justification for denial of
the retail liquor license, the protestants cited: (1) the proximity of the proposed location to the
churches, as mentioned herein; (2) traffic hazards at the intersection near the proposed location;
and, (3) the possible negative impact of the proposed location on the community.
.
CONCLUSIONS OF LAW AND DISCUSSION
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. 1995) and Chapter 23 of Title 1 of the 1976 Code, as amended,
authorizes the South Carolina Administrative Law Judge Division to hear this case.
2. The Administrative Law Judge Division has sole and exclusive authority to grant a retail liquor
license in contested and protested cases.
3. S.C. Code Ann. §§ 61-3-420, 425, 450, 460, 480, 490, and 730 (Supp. 1995) establish the
criteria for determining eligibility for a retail liquor license.
4. Although "proper location" is not statutorily defined, broad discretion is vested in the
Administrative Law Judge Division in determining the fitness or suitability of a particular location.
Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981).
5. 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); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308
(1981).
6. In determining whether a proposed location is suitable, it is proper for this tribunal to consider
any evidence that shows adverse circumstances of location. Smith v. Pratt, 258 S.C. 504, 189
S.E.2d 301 (1972); Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984);
See also Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
7. The denial of a license or permit to an applicant on the grounds of unsuitability of location is
without evidentiary support when relevant testimony of those opposing the requested license or
permit consists entirely of opinions, generalities, and conclusions not supported by facts. Taylor
v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301
(1972).
8. There has not been a sufficient evidentiary showing that the present location is unsuitable or
that the issuance of a retail liquor license would affect the residents' safety, create traffic
problems, or have an adverse impact on the community. The proposed location and the nature of
the business activity are suitable and proper. 48 C.J.S. Intoxicating Liquors § 121 (1981).
9. Petitioner meets all of the criteria enacted by the South Carolina General Assembly for the
issuance of a retail liquor license. In making a decision in this matter, this tribunal is constrained
by the record before it and the applicable statutory and case law. The objections raised by the
protestants are mainly rooted in their abhorrence to the proposed location selling liquor. This
tribunal acknowledges the protestants' opposition to the issuance of the license, in question, and
also acknowledges their right to hold such sentiments. However, the basis of this opposition is
without merit and is not within the statutory grounds for refusal. See 48 C.J.S. Intoxicating
Liquors §§ 118, 119, 121 (1981). The mere aversion to the sale of liquor at the proposed
location is not a sufficient basis on which to deny petitioner's request. Furthermore, the fact that
residents protest the issuance of the license is not a sufficient reason by itself to deny the
application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994). In requesting this
tribunal to deny petitioner's application, protestants are in essence asking this tribunal to
effectuate zoning. The ultimate purpose of which is to confine certain classes of buildings and
uses to certain localities. 101A C.J.S. Zoning and Land Planning §101 at 366 (1979). Such
authority is vested solely in protestants' local government.
Standards for judging the suitability of a proposed location for the sale of liquor are not
determined by a local community's religious convictions or moral litmus test. Criteria must be
uniform, objective, constant, and consistent throughout the State. The sale of liquor is a lawful
enterprise in South Carolina, as regulated by the State. More importantly, petitioner satisfies all
of the statutory grounds enacted by the South Carolina General Assembly for holding a retail
liquor license, and this tribunal has neither the authority nor the inclination to conduct local
referenda on whether a particular community is opposed in principle to the sale of liquor.
10. Petitioner satisfies all statutory requirements for holding a retail liquor license and the
proposed location is suitable and proper for the issuance of a retail liquor license.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the Department of Revenue and Taxation issue a retail liquor license to Gary
Herron for a location at 1714 Neeses Highway, Orangeburg County, South Carolina upon the
payment of the required fee(s) and cost(s) by petitioner.
AND IT IS SO ORDERED.
__________________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
December 11, 1996
Columbia, South Carolina |