SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1997) and S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1997) upon an application for a retail liquor license filed with the South Carolina Department of Revenue (hereinafter referred to as "DOR") by Petitioner for a location at 506 Middleton Drive, Windsor, South Carolina. A hearing was held on April 17, 1998. The primary issue in controversy was whether the proposed location is a suitable one for the retail sale of liquor. Based upon the probative and relevant evidence and the applicable law, the proposed location is suitable, and the license is granted.

By a preponderance of the evidence, I find:

1. Petitioner seeks a retail liquor license for a location at 506 Middleton Drive, Windsor, South Carolina, having filed an application with DOR, AI #118668.
2. Notice of the time, date, place, and subject matter of the hearing was given to all parties and protestants.
3. Upon motion granted, DOR was excused from appearance at and participation in the contested case hearing on the ground that it would have granted the permit and license but

for the unanswered question of the suitability of the proposed location. DOR did not appear at the hearing nor express opposition to the issuance of the permit.

1. The proposed location is located near the intersection of Highway 78 (a/k/a Middleton Drive) and Spring Branch Road, within the Town of Windsor, in Aiken County.
2. A small mobile building formerly used to sell snow cones currently sits on the site of the proposed liquor store but will be moved off the premises prior to the opening of the proposed liquor store.
3. Petitioner is constructing a wooden A-frame structure to be moved to the proposed location to be used as the liquor store.
4. Spring Branch Road, an access road to Highway 78 for many residences, dead-ends at a stop sign on Highway 78.
5. Highway 78 is a busy traffic thoroughfare with a speed limit of 45 miles per hour.
6. A general convenience store known as "Ruth's Store" is between the proposed location and the intersection of Highway 78 with Spring Branch Road.
7. Ruth's Store has been at its present location for approximately 5-10 years and has been licensed to sell beer and wine during that entire period.
8. Ruth's Store is situated in such close proximity to Highway 78 that delivery trucks and customers' automobiles parked in front of the store create a traffic hazard along Highway 78 and block the view of Highway 78 for motorists attempting to enter Highway 78 from Spring Branch Road.
9. The proposed location is approximately 30 to 40 feet from Highway 78 and approximately 100 yards from Spring Branch Road.
10. Because of the distance of the proposed location from Highway 78 and the intersection of Highway 78 and Spring Branch Road, the proposed location will not aggravate the visibility problem for motorists attempting to enter Highway 78 from Spring Branch Road.
11. Because of the distance of the proposed location from Highway 78, cars and trucks parked in front of the proposed location will not create a traffic hazard along the side of Highway 78.
12. The nearest retail liquor store to the proposed location is 4.4 miles away.
13. No church, school, or playground is within three hundred (300') feet of the proposed location.
14. Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained his principal residence in South Carolina for more than thirty days.
15. Petitioner has not had a permit/license revoked in the last five years
16. Petitioner is of good moral character
17. Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.
18. The proposed location is suitable for the retail sale of liquor.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:

1. The South Carolina Administrative Law Judge Division has jurisdiction over this subject matter pursuant to S.C. Code Ann. §§ 61-2-260 (Supp. 1997) and 1-23-310 et seq. (1986 & Supp. 1997).
2. Issuance of a retail liquor license to an applicant pursuant to S.C. Code Ann. § 61-6-100 (Supp. 1997) is subject to the applicant meeting the qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 1997) and the proposed location meeting the requirements of S.C. Code Ann. § 61-6-120 (Supp. 1997).
3. S.C. Code Ann. § 61-6-910 (Supp. 1997) provides the criteria for refusal of the issuance of a retail liquor license in South Carolina.
4. Proper notice of the application for the license sought was made, pursuant to S.C. Code Ann. § 61-6-180 (Supp. 1997).
5. Petitioner meets the statutory requirements for issuance of a retail liquor license.
6. S.C. Code Ann. § 61-6-120 (Supp. 1997) dictates that a retail liquor store situated outside of a municipality must be a minimum of three hundred (300') feet from any church, school, or playground; provided, however, the above restrictions do not apply to the renewal of licenses or to new applications for locations previously licensed. 23 S.C. Code Ann. Regs. 7-11 (1976) provides the method for measuring the distances referred to in § 61-6-120.
7. No schools, churches, or playgrounds are within the prescribed proximity to render the proposed location unsuitable under S.C. Code Ann. § 61-6-120 (Supp. 1997).
8. The further issuance of retail liquor licenses may be limited in a political subdivision if it is determined that the citizenry is more than adequately served because of existing retailers, the location of the existing stores in the area, or other reasons, pursuant to S.C. Code Ann. § 61-6-170 (Supp. 1997). The evidence presented failed to establish that the citizens of the political subdivision within which the proposed location is situated are "more than adequately served."
9. When the relevant testimony of those opposing the license consists of opinions, generalities, and conclusions unsupported by fact, the denial of a license on the ground of unsuitability of location is unfounded. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (1981). Such unsupported allegations form an insufficient basis for denial. 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).
10. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed." Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
11. As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an applicant for a liquor license using broad but not unbridled discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
12. 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).
13. The trier of fact must weigh and pass upon the credibility of evidence presented. See S.C. Cable Television Ass'n v. Southern Bell Tel. and Tel. Co., 308 S.C. 216, 417 S.E.2d 586 (1992). The trial judge who observes a witness is in the best position to judge the witness's demeanor and veracity and evaluate his testimony. See McAlister v. Patterson, 278 S.C. 481, 299 S.E.2d 322 (1982); Peay v. Peay, 260 S.C. 108, 194 S.E.2d 392 (1973); Mann v. Walker, 285 S.C. 194, 328 S.E.2d (Ct. App. 1985); Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (Ct. App. 1984).
14. The proposed location is suitable for the purpose of operating as a retail liquor store.

ORDER

IT IS THEREFORE ORDERED that DOR issue the retail liquor license applied for by Petitioner.

AND IT IS SO ORDERED.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

May 13, 1998

Columbia, South Carolina