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, Charleston Fine Wine, Inc. d/b/a Total
Wine & More, seeks a retail liquor license. The Respondent, SC DOR, would have granted the
license but for the protests. The Protestants have raised concerns about the number of beer and wine
permits and retail liquor licenses in the area. A hearing was held on this matter on May 3, 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 Protestants.
2.The Petitioner, Charleston Fine Wine, Inc., d/b/a Total Wine & More, is seeking a
retail liquor license. The proposed location is located at 1820 B Ashley River Road, Charleston,
South Carolina. David J. Trone is the president of Charleston Fine Wine, Inc., d/b/a Total Wine &
More.
3.The qualifications set forth in S. C. Code Ann. § 61-6-110 (Supp. 2003) concerning
the age, residency, and reputation of Mr. Trone and Charleston Fine Wine, Inc. are properly
established. Furthermore, Mr. Trone 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 § 61-6-180.
4.Mr. Trone 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. Trone’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.
7.Mr. David A. Simmons, a Charleston real estate developer, testified that as a landlord
he is comfortable with Charleston Fine Wine, Inc. as a tenant. In addition, the proposed location was
previously a Harris-Teeter grocery store which had an off-premises beer and wine permit. Mr.
Simmons was not aware of any violations or protests during the time the Harris-Teeter store was
operating. In addition, he testified that the area is heavily commercial with several other retail liquor
and off premises beer and wine permits in the area.
8.Furthermore, Eric Nichols, the commercial real estate agent, testified that he
represents large retailers. He focused on the west Ashley area of Charleston as the most active retail
area of Charleston. He also noted that there were several other alcohol outlets in the area.
9.The Protestants addressed the Court. Mr. Cavanaugh and Mr. Morrill both own and
operate retail liquor stores in Charleston county, and felt that the area is adequately served. Both
were concerned that existing Charleston county stores would be hurt by a retailer of this magnitude,
especially in light of the number of alcohol outlets in the area. Although the Protestants’ convictions
are strong, their 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 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.S.C. Code Ann. § 61-6-170 (Supp. 2003) states
“the department (South Carolina Department of Revenue) 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 mote than adequately served
because of (1) the number of existing retail stores, (2) the location of
the stores within the subdivision, or (3) other reasons.”
The Department did not take such action in this case. They specifically did not oppose this license
and would have granted it, but for the protest.
4.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
conjecture and concerns by the Protestants.
6.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 Charleston Fine
Wine, Inc., d/b/a Total Wine & More of Columbia, Inc. for the location at 1820 B Ashley River
Road, Charleston, South Carolina, be granted upon the Petitioner’s payment of the required fees and
costs, and upon final inspection by the State Law Enforcement Division under SC Code Ann. § 61-6-1510 (Supp. 2003).
AND IT IS SO ORDERED.
_______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
May 18, 2004
Columbia, South Carolina |
