ORDERS:
FINAL ORDER AND DECISION
This matter comes before the Administrative Law Court (Court) pursuant to S.C. Code Ann. §§
61-6-100 et seq. (Supp. 2003), § 61-6-910 (Supp. 2003), and §§ 1-23-310 et seq. (1986 and Supp.
2003) for a contested case hearing. The Petitioner, Our Liquor Store d/b/a Our Liquor Store, seeks a
retail liquor license. The Respondent denied the license based on the fact that the applicant did not
have a lease in his name, that all the principals involved with the business were not disclosed on the
application, and that a protest had been received. The Petitioner submitted a revised application prior
to the hearing, and presented a lease modification which included the proper parties. Based on these
changes, the Department withdrew its objections to the application, other than the protest. The
Protestant raised concerns about when the location started selling alcohol, as well as the number of
beer and wine permits and retail liquor licenses in the area. A hearing was held on this matter on
April 16, 2004, at the offices of the Court in Columbia, South Carolina.
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 parties and the Protestant, 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, the Respondent, and the Protestant.
2.The Petitioner, Our Liquor Store, d/b/a Our Liquor Store, is seeking a retail liquor
license. The proposed location is 615 North Main Street, New Ellenton, South Carolina.
3.The qualifications set forth in S. C. Code Ann. § 61-6-110 (Supp. 2003) concerning the
age, residency, and reputation of Mr. Powell are properly established. Furthermore, Mr. Powell 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 published in a newspaper of general
circulation, as required by S.C. Code Ann. § 61-6-180 (Supp. 2003) . This location was licensed in
September 2003. Due to a change in the corporate structure in October, 2003, this action followed as
required by 23 SC Code Ann. Reg.7-200 H.
4.Mr. Powell 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 three hundred feet of any
church, school or playground, as provided in § 61-6-120 (A).
6.No other member of the Mr. Powell’s household has been issued a retail liquor store
license. Additionally, Mr. Powell 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.
7.Mrs. Jesse Mackie testified for the Petitioner that she has no criminal record and is of
sufficient moral character to receive a retail liquor license. In addition, she has not been issued more
than three retail liquor licenses, nor does she have an interest, financial or otherwise, in more than three
retail liquor stores.
8. The Department stated that but for the protest, the license would have been issued.
9.The Protestant addressed the Court. Mrs. Simons was concerned about the date that the
store began selling alcohol. She had filed several Freedom of Information requests with SC DOR,
SLED and the City of New Ellenton seeking information on the start date of the business, and the
crime reports for the area. The Protestant was notified that the location had been licensed in September
of 2003, and that it was appropriate for the store to be open then. Although Mrs. Simons is admirable
in her zeal to protect her community and its citizens, her arguments do not rise to the level of adequate
grounds to prevent issuance of the license.
10. 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. 2003) grants jurisdiction to the Administrative Law
Judge Court to hear contested cases under the Administrative Procedures Act. Furthermore, S.C. Code
Ann. § 61-2-260 (Supp. 2003) grants the Court the responsibilities to determine contested matters
governing alcoholic beverages, beer and wine.
2.S.C. Code Ann. §§ 61-6-110 et seq. (Supp. 2003) sets forth the requirements for
determining eligibility for a retail liquor license.
3.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). As the trier of fact, the Administrative Law Judge is authorized
to determine the fitness or suitability of the proposed business location for a license to sell liquor using
broad, but not unbridled, discretion. Byers v. South Carolina ABC Commission, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984). The determination of suitability of 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). Additionally, without sufficient
evidence of an adverse impact on the community, the application must be granted 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.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, et al. , 261 S.C. 168, 198 S.E. 2d 801 (1973). There was no testimony or other evidence
submitted as to the specific adverse impact that the granting of this particular license would have on the
community. There were no concrete facts or incident reports submitted, only concerns by the
Protestant.
6.The Petitioner meets all statutory requirements for holding a retail liquor license at the
proposed location, and the location is a suitable one.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the retail liquor license of Petitioner Our Liquor Store, d/b/a
Our Liquor Store for the location at 615 North Main Street, New Ellenton, South Carolina, be granted
upon the Petitioner’s payment of the required fees and costs.
AND IT IS SO ORDERED.
_______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
April 28, 2004
Columbia, South Carolina |
