ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Judge Division pursuant to S.C. Code Ann. §§ 61-6-110, 61-6-160 and
61-6-910 (Supp. 1998) and S. C. Code Ann. §§ 1-23-310 et seq. (1986 and Supp. 1998) for a contested case hearing. The
Petitioner, Surf Beverage, Inc., through individual licensee Ashley D. Shelley, seeks a retail liquor license. The Department
of Revenue (Department) made a Motion to be Excused stating that but for the protests it received, the license would have
been granted. This motion was granted by my Order dated April 7, 1999. Respondent Walt Shannon, who was originally a
Protestant in this matter, made a Motion to Intervene through his attorney, J. Charles Ormond, Jr. This Motion, although
objected to by the Petitioner, was granted by my Order dated July 27, 1999. A hearing was held on this matter on August
10, 1999, at the Administrative Law Judge Division.
FINDINGS OF FACT
Having observed the witnesses and exhibits presented at the hearing and closely passed upon their credibility, taking into
consideration the burden of persuasion by the Petitioner and the Protestants, 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, Protestants, and Respondents.
2. The Petitioner is Surf Beverage, Inc., located at 4700 Holmestown Road, Unit 102, Myrtle Beach, Horry County, South
Carolina. The proposed location is in a building owned by The Pantry, Inc., which currently holds an off-premises beer and
wine permit adjacent to the proposed location. However, the two businesses are separate and distinct with no physical
means of access between them.
3. The qualifications set forth in S. C. Code Ann. §61-6-110 (Supp. 1998) concerning the age, residency, and reputation of
the Petitioner and/or licensee are properly established. Furthermore, the Petitioner has not had a license regulating the
manufacture or 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. The licensee 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 500 feet or unreasonably close to any church, school or
playground.
6. Surf Beverage is located in an unincorporated portion of Horry County at the highly congested intersection of
Holmestown Road and Highway 707. There are at least four other locations that hold retail liquor licenses within a five mile
area of this proposed location: Castle Liquor Store is roughly five miles from the proposed location of Surf Beverage;
Gage's Liquor Store is about seven miles from the proposed location; J.C. Spirits is approximately six miles from the
proposed location; and Lance's Liquor Store is 1/2 mile from the proposed location.(1) Several stores within five miles of
the proposed location are permitted to sell beer and wine off-premises, including the location directly adjacent to Surf
Beverage. Furthermore, other locations licensed as retail liquor stores have recently opened in this general area, although
those licenses are not before me in this matter.
7. Walt Shannon and Gloria Lance, the individuals protesting the issuance of this retail liquor license, expressed concerns
regarding the following:
a. the saturation of liquor stores in the vicinity;
b. the amount of crime in the area as it relates to these liquor stores;
c. and the response time by the Horry County Sheriff's Department to criminal incidents.
As to the concern regarding the density of liquor stores in the area, the Protestants relied primarily on S.C. Code Ann. § 61-6-170 (Supp. 1998) which gives the Department of Revenue the discretion to limit the issuance of retail liquor licenses if it
finds that an adequate number of licensed stores already exist in the community. The Protestants set forth that they did not
want the nature of the community to change by causing an increase in the already-heavy traffic flow and by attracting a
"lessor" type of character solely to purchase alcohol. However, aside from establishing that four licensed locations exist
within a five mile area of the proposed location, the Protestants did not establish that the area was adequately served by the
existing retail liquor stores.
The Protestants also did not establish sufficient evidence to support their concerns regarding the amount of crime in the area
as it relates to these liquor stores. S.C. Code § 61-6-160 (Supp. 1998) sets forth, in part, that "the department may not
license a retail dealer in any locality unless the department determines that the locality is under proper police protection. The
only evidence offered to support this issue was the testimony of Ms. Lance that her liquor store had three attempted
robberies within the last year. In that same regard, the Protestants' concerns about the response time of the Horry County
Sheriff's Department was only addressed by Ms. Lance's testimony that it took the Sheriff's Department twenty-five minutes
to reach her store after one of those attempted robberies. However, Mr. Brown, a regulatory manager with the Department
of Revenue, testified that the Department routinely notifies local law enforcement and relies on them to come forward during
the licensing process with their concerns about crime and ability to adequately police the area. In this case, the Horry
County Sheriff's Department did not voice any concerns.
The Protestants simply have not presented adequate evidence to indicate that the proposed location will be a source of any
law enforcement problems or will cause the community to have too many liquor stores so as to saturate the vicinity and
thereby warrant safeguarding the public health, safety and welfare of the citizens in the area. Furthermore, Mr. Shannon, as
owner of Castle Liquor Store, and Ms. Lance, as owner of Lance ABC Store, acknowledged that they will be in competition
with the Petitioner, which is perhaps the real crux of their protests.
8. I find the proposed location to be suitable for a retail liquor license.
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. 1998) grants jurisdiction to the Administrative Law Judge Division to hear contested
cases under the Administrative Procedures Act.
2. S.C. Code Ann. § 61-2-260 (Supp. 1998) grants the Administrative Law Judge Division the responsibilities to determine
contested matters governing alcoholic beverages, beer and wine.
3. S.C. Code Ann. §§ 61-6-110 and 61-6-910 (Supp. 1998) set forth the requirements for the issuance of a retail liquor
license.
4. S.C. Code Ann. § 61-6-160 (Supp. 1998) grants the Department the discretion to grant licenses to retail dealers in
unincorporated areas within the state of South Carolina provided the Department has determined that the locality is under
adequate police protection.
5. Under S.C. Code Ann. § 61-6-170 (Supp. 1998), the Department may, in its discretion, limit the further issuance of retail
liquor licenses in a community if it determines that, among other things, an adequate number of stores already serve the area.
6. 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).
7. As the trier of fact, the Administrative Law Judge is authorized to determine the fitness or suitability of the proposed
business location of a Petitioner for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South
Carolina ABC Commission, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984).
8. 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 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).
9. 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 permit 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).
10. The Petitioner meets the statutory requirements for holding a retail liquor license at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
ORDERED that the retail liquor license of Petitioner Surf Beverage, Inc., be granted upon the Petitioner's payment of the
required fees and costs.
AND IT IS SO ORDERED.
_______________________________
Ralph King Anderson, III
Administrative Law Judge
September 10, 1999
Columbia, South Carolina
1. The names of these liquor stores may not be exact due to the fact that they were not introduced in writing at the hearing. |
