ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C.
Code Ann. § 1-23-310 et seq. (Supp. 2002) upon the filing of an application by Petitioner Wayne S.
Stroud, d/b/a WSS ABC, (“Petitioner”), for a retail liquor license for a location at 2808 Geer
Highway, Marietta, South Carolina (“the subject location”). Upon receipt of written protests to the
application, the South Carolina Department of Revenue (“Department”) transmitted the case to the
Administrative Law Judge Division (“ALJD”) for a hearing. After timely notice to the parties and
the Protestants
, a contested case hearing was held on December 22, 2003 at the offices of the ALJD
in Columbia, South Carolina. The Department was excused from attending the hearing. Upon review
of the relevant and probative evidence and applicable law, the application for a retail liquor license
is granted.
FINDINGS OF FACT
Having carefully considered all testimony 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.Notice of the time, date, place, and subject matter of the hearing was given to all
parties and to the Protestant in a timely manner.
2.Petitioner seeks a retail liquor license for the subject location of 2808 Geer Highway,
Marietta, South Carolina.
3.The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2002) concerning
the age, residency, and reputation of the Petitioner are properly established. Furthermore, the
Petitioner has not had a license for the 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 Petitioner has no criminal record and is of sufficient moral character to receive
a retail liquor license.
5.No other member of Petitioner’s household has been issued a retail liquor store
license. Additionally, the Petitioner has not been issued more than three retail liquor licenses, nor does
he have an interest, financial or otherwise, in more than three retail liquor stores.
6. The proposed location is not within five hundred feet of any church, school, or
playground.
7. There is a Handee Mart across the street form the subject location which sells beer.
8.A SLED investigation of the Petitioner’s establishment determined that it complied
with the applicable laws.
9.The Department was excused from the hearing on the basis of its motion indicating
that it would have issued the license in question but for the unanswered questions of the suitability
of the location raised by the Protestant. The Department’s file on the Petitioner’s application was
admitted into evidence at the hearing.
10.The Protestant lives approximately two miles from the subject location. None of the
businesses or residents in the immediate vicinity of the subject location protested the application. The
Protestant is against the sale of alcohol because he is a Christian. In addition, he is concerned about
the proximity of the subject location to a school, playground, day care center, and church, as well as
a hair cutting business which has many women and children patrons.
He believes that the granting
of this application may result in increases in traffic, drunk driving, litter, and crime. Further, he is
concerned about the lack of police protection in the town.
CONCLUSIONS OF LAW
Based upon the findings of fact, I conclude as a matter of law the following:
1.S.C. Code Ann. § 1-23-600 (Supp. 2002) grants jurisdiction to the ALJD to hear
contested cases under the Administrative Procedures Act (“APA”). Furthermore, S.C. Code Ann.
§ 61-2-260 (Supp. 2002) grants the ALJD the responsibilities to determine contested matters
governing alcoholic beverages, beer, and wine.
2.S.C. Code Ann. § 61-6-110 et seq. (Supp. 2002) sets forth the requirements for
determining eligibility for a retail liquor license.
3.Licenses issued by the State for the sale of beer, wine, and liquor are not rights or
property, but are rather privileges granted in the exercise of the police power of the State to be used
and enjoyed only so long as the restrictions and conditions governing them are complied with. As
the tribunal authorized to grant the issuance of a license is also authorized, for cause, to revoke it,
that tribunal is likewise authorized to place restrictions or conditions on the license. See Feldman v.
S.C. Tax Comm’n, 203 S.C. 49, 26 S.E.2d 22 (1943).
4.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 license 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).
5.The factual determination of whether or not an application is granted or denied is
usually the sole prerogative of the executive agency charged with rendering that decision. Palmer v.
S.C. ABC Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). 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 retail liquor license using broad but not unbridled discretion. Ronald
F. Byers v. S.C. ABC Comm’n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). It is also the fact
finder’s responsibility to judge the demeanor and credibility of witnesses and determine the relevance
and weight of any testimony and evidence offered.
6.Although “proper location” is not statutorily defined, broad discretion is vested in the
judge in determining the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram, 278
S.C. 593, 281 S.E.2d 118 (1981). 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). Any evidence adverse to the location may
be considered. The proximity of a location to a church, school, or residences is a proper ground by
itself upon which the location may be found to be unsuitable and a license denied. Byers v. S. C.
ABC Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the court can consider whether “there
have been law enforcement problems in the area.” Palmer v. S.C. ABC Comm’n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984).
7.In considering the suitability of a location, it is relevant to consider whether the
testimony in opposition to the granting of a license is based on opinions, generalities, and conclusions,
or whether the case is supported by facts. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972);
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
8. An aversion to the sale of alcoholic beverages is not within the statutory grounds for
denial of a license request. See 48 C.J.S. Intoxicating Liquors Sections 118, 119, 121 (181).
9.To some extent, the Protestant is asking the ALJD to effectuate zoning. The ultimate
purpose of zoning is to confine certain classes of buildings and uses to certain localities. 101A C.J.S.
Zoning and Land Planning § 101 (1979). Such authority is vested solely in the local government.
10.Giving weight to the testimony of the Petitioner and the Protestant, I find that the
proposed location is suitable for a retail liquor license. I further find that the application for a retail
liquor license should be granted.
ORDER
Based upon the foregoing findings of fact and conclusions of law,
IT IS HEREBY ORDERED that the Petitioner’s application for a retail liquor license for
the location at 2808 Geer Highway, Marietta, South Carolina, is granted.
AND IT IS SO ORDERED.
________________________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
December 22, 2003
Columbia, South Carolina |
