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 Department of Revenue (hereinafter referred to as "DOR") by Petitioner for a location at 2212 Decker Blvd., Columbia, South Carolina. A hearing was held on April 9, 1998. At the hearing, Bob Sherr was admitted as an Intervenor-Protestant without objection. The primary issues addressed were whether the proposed location was suitable and whether the immediate area surrounding the proposed location is currently saturated with licensed locations. 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 2212 Decker Blvd., Columbia, South Carolina, having filed an application with DOR, AI #118907.
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.
4. The proposed location is located in unincorporated Richland County on a busy thoroughfare in a heavily commercial area.
5. The proposed location has been licensed and has operated as a retail liquor store by previous licensees, including Intervenor-Protestant Bob Sherr, since approximately 1972.
6. The Texaco station located across the street from the proposed location is permitted to sell beer and wine for off-premises consumption.
7. There are currently six licensed retail liquor stores within a three-mile radius of the proposed location, with two stores on Percival Road, two stores on Two Notch Road, one on Decker Boulevard, and one on Parklane Road.
8. Intervenor-Protestant Bob Sherr now owns and operates a retail liquor store in a strip shopping center at 2230-B Decker Boulevard, less than half a block from the proposed location, having opened the store in November, 1997.
9. All testimony offered at the hearing in regard to the adequacy of currently licensed retail liquor stores to serve the community was in the form of opinion and speculation.
10. No evidence was offered to establish the number of persons residing within a three-mile radius of the proposed location.
11. No evidence was offered to establish the number of persons or potential customers which pass by the proposed location or the other licensed locations using the public thoroughfares on a periodic basis.
12. No church is within five hundred (500') feet of the proposed location.
13. Sunshine House Day Care, a child care center and playground, is located diagonally across Decker Boulevard from the proposed location.

1. The distance from Sunshine House Day Care to the proposed location is unknown; however, the proposed location was licensed as a retail liquor store prior to the construction of the day care center.
2. Petitioner currently owns and operates a retail liquor store on Forest Drive, in Forest Acres, South Carolina.
3. Upon issuance of the retail liquor license sought, Petitioner intends to sell the Forest Drive store and operate only the proposed location.
4. 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.
5. Petitioner has not had a permit/license revoked in the last five years
6. Petitioner is of good moral character
7. 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.
8. 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 five hundred (500') 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 in light of the commercial nature of the area and the past use of the location for that same purpose without evidence of violation or incident.

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

April 29, 1998

Columbia, South Carolina