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. (Supp. 1997) for a hearing on the application of Jeff Henry, Jr. Petitioner seeks a retail liquor license for a proposed business to be located at 403 Dogwood Drive in Lee County, five hundred feet outside the city limits of Bishopville, South Carolina.

After timely notices to the parties and the protestants, a hearing was held at the Administrative Law Judge Division in Columbia, South Carolina on June 9, 1998. The issue considered at the hearing was Petitioner's eligibility to hold a retail liquor license at the proposed business location.

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 a proposed business to be located at 403 Dogwood Drive, in Lee County, five hundred feet outside the city limits of Bishopville, South Carolina. Petitioner has held an on-premises beer and wine permit with restrictions at the same location since 1991.
2. Petitioner's application, filed with the Department of Revenue on October 23, 1997, was made a part of the record by reference without objections.
3. Petitioner is at least twenty-one years of age, a U.S. citizen, and has maintained his principal place of abode in South Carolina since 1958.
4. Petitioner is of good moral character and is of good repute. The State Law Enforcement Division completed a criminal background investigation of Petitioner, and the report revealed no criminal violations. Further, the record does not reveal that Petitioner has engaged in acts or conduct that imply the absence of good moral character.
5. Petitioner has not had an alcoholic liquor license revoked within five years preceding the filing of the application.
6. Petitioner's proposed place of business is not located within 500 feet of any church, school, or playground.
7. No other member of Petitioner's household has been issued a retail liquor store license.
8. Petitioner has neither been issued more than three retail dealer licenses nor does he, a relative, or any partnership, association, corporation in which he is involved have an interest, financial or otherwise, in more than three retail stores.
9. Petitioner provided notice of his application in the Lee County Observer on the weeks of October 1, 8, and 15, 1997. The Lee County Observer is published and issued in the area of the proposed business. Petitioner also displayed a sign for fifteen days at the site of the proposed business, beginning September 22, 1997.
10. The Department was excused from attending the hearing because there is no controversy between Petitioner and the Department. The Department has no evidence it wished to offer concerning the issuance of the license, and would have issued the license but for the unanswered question of the suitability of the location.
11. Protestant Wanda Brunson's objection is that her church, Progressive Church of Our Lord Jesus Christ, intends to build a church immediately across the street from Petitioner's proposed business site. The church is to be completed by Fall, 1999.
12. Protestant Jerry Caughman contends that the location is not zoned for commercial business, that there is a "lack of control" at Petitioner's existing business, and that noise problems result from drag racing that occurs when the establishment is open.
13. A SLED investigation in September 1997 determined that Petitioner had not complied with the structural requirements of § 61-6-1510.

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

1. S.C. Code Ann. § 61-2-260 (Supp. 1997) and Chapter 23 of Title 1 of the 1976 Code, as amended, authorize the South Carolina Administrative Law Judge Division to hear this case.
2. S.C. Code Ann. §§ 61-6-110 and 61-6-120 (Supp. 1997) establish the criteria for determining eligibility for a retail liquor license. Additional requirements are set forth in § 61-6-130 to § 61-6-190.
3. Although "proper location" is not statutorily defined, broad discretion is vested in the Administrative Law Judge Division as the finder 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).
4. 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. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
5. 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. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
6. The protestants have not submitted sufficient evidence to show that the present location is unsuitable or that the issuance of a retail liquor license would affect the resident's safety, create additional traffic problems, or have an adverse impact on the community. The evidence does not support the conclusion that the problems cited by Mr. Caughman are attributable to the operation of the establishment. This tribunal acknowledges the protestants' opposition to the issuance of the license in question and their right to hold such sentiments; however, the basis of this opposition is without merit and is not within the statutory grounds for refusal. The fact that the issuance of a permit or license is protested is not a sufficient reason by itself to deny the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1994).
7. Petitioner must maintain a separate store or place or business for the retail store from his current place of business at 403 Dogwood Drive to satisfy the criteria of § 61-6-1510. Petitioner must build a firewall between the existing structure and the proposed place of business.
8. The location is suitable and proper for the issuance of a retail liquor license, provided that Petitioner complete the firewall between the two businesses to comply with § 61-6-1510.

Based upon the Findings of Fact and Conclusions of Law, it is hereby

ORDERED that the Department of Revenue continue to process the application of Jeff Henry, Jr. for a retail liquor license for 403 Dogwood Drive, Bishopville, South Carolina.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

Post Office Box 11667

Columbia, South Carolina 29211-1667

July 1, 1998

Columbia, South Carolina