ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003)
and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2003) for a contested case hearing.
Petitioner Ashley Sessions seeks a retail liquor license for a liquor store to be known as American
Liquors, located at 116 Highway 17 North in Surfside Beach, South Carolina. Respondent South
Carolina Department of Revenue (Department) would have granted the license, upon a satisfactory
final inspection of the premises, but for a protest filed by Ms. Sunita Patel regarding the suitability
of the store’s location. Accordingly, the Department was excused from the hearing of this matter.
After timely notice to the parties and protestant, a hearing of this case was held on May 11,
2004, at the Administrative Law Court in Columbia, South Carolina. Based upon the evidence
presented regarding the suitability of the proposed location and upon the applicable law, I find that
Petitioner’s application for a retail liquor license should be granted.
FINDINGS OF FACT
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 Ashley Sessions, the sole owner of American Liquors, submitted an
application for a retail liquor license to the Department on December 31, 2003, for the premises
located at 116 Highway 17 North in Surfside Beach, South Carolina. This application and the
Department’s file on the application are hereby incorporated into the record by reference.
2.The proposed store is a 3000-square-foot retail space in the Surfside Beach Shopping
Center on Highway 17 in Surfside Beach, South Carolina. Other units in the shopping center are
occupied by a furniture store, a bagel shop, a restaurant, and a grocery store, among other businesses.
The shopping center itself is situated along a heavily traveled, four-lane highway in a predominantly
commercial area of Surfside Beach.
3.In recent years, Surfside Beach and the greater Myrtle Beach area as a whole have
experienced, and continue to experience, rapid commercial and residential development, as
increasing numbers of people are attracted to the area both as a vacation destination and as a place
for permanent residence. The Surfside Beach area is currently served by approximately five retail
liquor stores.
4.Petitioner is over twenty-one years of age, is a citizen of the United States, and has
resided and maintained her principle place of abode in South Carolina for at least thirty days prior
to submitting her application for a retail liquor license.
5.Petitioner is a person of good moral character and a suitable person to hold a retail
liquor license. The criminal background investigation of Petitioner conducted by the South Carolina
Law Enforcement Division (SLED) did not reveal any criminal convictions or arrests for Petitioner,
and the record in this case does not indicate that Petitioner has engaged in acts or conduct implying
the absence of good moral character or otherwise rendering her unsuitable to hold the requested
license.
6.Petitioner has not had a permit to sell beer or wine or a license to sell alcoholic
liquors suspended or revoked within the five years preceding the filing of her application for a retail
liquor license.
7.The premises to be licensed are not located within three hundred feet of any church,
school, or playground, nor are there any residences in the immediate vicinity of the proposed
location.
8.No other members of Petitioner’s household have been issued retail liquor licenses.
Further, Petitioner has not been issued more than three retail liquor licenses, nor does she, her
relatives, or any partnership, association, or corporation in which she is involved, have an interest,
financial or otherwise, in more than three retail liquor stores.
9.Notice of Petitioner’s application was published in the Myrtle Beach Sun News, a
newspaper published and circulated in Horry County, South Carolina, for three consecutive weeks,
and proper notice of the application was posted at the proposed location for fifteen days.
10.The protestant of record, Ms. Sunita Patel, owns and operates a retail liquor store
approximately two tenths of a mile from the proposed location. At the hearing, Ms. Patel expressed
her concern that, while the area was experiencing growth, this growth was not sufficient to support
an additional liquor store in the area.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude the following as a matter of law:
1.Jurisdiction over this case is vested with the South Carolina Administrative Law
Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2003) and S.C. Code Ann. §§ 1-23-310 et seq.
(1986 & Supp. 2003).
2.“[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.
S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984);
see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).
3.S.C. Code Ann. §§ 61-6-110 and 61-6-120 (Supp. 2003) establish the basic criteria
for determining eligibility for a retail liquor license. Additional requirements are set forth in S.C.
Code Ann. §§ 61-6-130 to 61-6-190 (Supp. 2003).
4.Sections 61-6-170 and 61-6-910(3) grant the licensing authority discretion to limit
the number of retail liquor licenses issued to locations in a given area. Section 61-6-170 provides
that:
The department may, in its discretion, limit the further issuance of retail dealer
licenses in a political subdivision if it determines that the citizens who desire to
purchase alcoholic liquors therein are more than adequately served because of (1) the
number of existing retail stores, (2) the location of stores within the subdivision, or
(3) other reasons.
S.C. Code Ann. § 61-6-170 (Supp. 2003). Similarly, Section 61-6-910 states that “[t]he department
must refuse to issue any license . . . if the department is of the opinion that . . . a sufficient number
of licenses have already been issued in the State, incorporated municipality, unincorporated
community, or other community.” S.C. Code Ann. § 61-6-910(3) (Supp. 2003). Based upon these
statutes, the protestant contends that Petitioner’s application should be denied because of the
oversaturation of retail liquor stores in the Surfside Beach area. However, the thrust of these
provisions is clearly not to ensure the economic viability of existing licensed retailers, but to
safeguard the public health, safety, and welfare of communities in which retail liquor licenses are
sought. See Pandy v. S.C. Dep’t of Revenue & Taxation, Docket No. 95-ALJ-17-0527-CC (S.C.
Admin. Law Judge Div. Sept. 26, 1995). In the instant case, the protestant’s oversaturation argument
focuses on the economic viability of Petitioner’s store and its impact upon the economic viability
of existing retailers, and not upon the public safety, health, or welfare of the residents of the Surfside
Beach community. And, there is absolutely no evidence in the record to suggest that the public
safety, health, or welfare of those residents will be adversely affected by the operation of Petitioner’s
store.
5.In addition to the provisions allowing the Department to limit the number of liquor
stores in a particular area, S.C. Code Ann. § 61-6-910(2) (Supp. 2003) provides that an application
for a license to sell alcoholic liquors must be denied if “the store or place of business to be occupied
by the applicant is not a suitable place.”
6.Although “suitable place” is not statutorily defined, broad discretion is vested in the
trier of fact to determine the fitness or suitability of a particular location for the requested license.
See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
7.The determination of suitability of location is not necessarily solely a function of
geography. Rather, 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. S.C. Alcoholic Beverage Control
Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).
8.Further, “a liquor license or permit may be properly refused on the ground that the
location of the establishment would adversely affect the public interest, that the nature of the
neighborhood and of the premises is such that the establishment would be detrimental to the welfare
. . . of the inhabitants, or that the manner of conducting the establishment would not be conducive
to the general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121, at 501 (1981).
9.However, without sufficient evidence of an adverse impact on the community, a
license application must not be denied if the statutory criteria are satisfied. And, 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 C.J.S. Intoxicating Liquors § 119 (1981).
10.Moreover, the denial of a license or permit to an applicant on the ground of
unsuitability of location is without evidentiary support when relevant testimony of those opposing
the requested license or permit consists entirely of opinions, generalities, and conclusions not
supported by the facts. 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).
11.In the case at hand, Petitioner meets all of the statutory criteria enacted by the South
Carolina General Assembly for the issuance of a retail liquor license, and there has not been a
sufficient evidentiary showing that the proposed location is unsuitable for Petitioner’s business or
that the issuance of the license would create problems in or have an adverse impact upon the
surrounding community. At the hearing of this matter, the protestant presented no evidence to
support her opposition to Petitioner’s proposed store; rather, she merely offered her opinion that the
Surfside Beach area could not support another retail liquor store. This tribunal acknowledges the
protestant’s right to object to the license in question and respects her opposition to the issuance of
the license. However, such a speculative opinion, unsupported by evidence of any kind, is plainly
insufficient to support the denial of Petitioner’s application for a license for which she is otherwise
qualified.
ORDER
Based upon the Findings of Fact and Conclusions of Law stated above,
IT IS HEREBY ORDERED that the Department shall continue to process Petitioner’s
application for a retail liquor license for the premises located at 116 Highway 17 North in Surfside
Beach, South Carolina.
AND IT IS SO ORDERED.
______________________________
JOHN D. GEATHERS
Administrative Law Judge
Post Office Box 11667
Columbia, South Carolina 29211-1667
May 18, 2004
Columbia, South Carolina |
