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), § 61-4-520 (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 an off premises beer and wine permit. The Respondent, SC DOR, would have
granted the permit 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 an
off premises beer and wine permit. The proposed location is located at 1820 A 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 off
premises beer and wine permit.
5.There was no adverse evidence or objections concerning the suitability of the
location, other than the protestants’ concerns about the number of alcohol outlets in the area.
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 run 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 off premises beer and wine permit.
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. § 61-4-520 (Supp. 2002) sets forth the requirements for issuance of
beer and wine permits.
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 permit
would have on the community. There were no concrete facts, incident reports, or alcohol studies
submitted, only conjecture and concerns by the Protestants about their businesses and the business
of the other alcohol outlets in the area. Mr. Cavanaugh whose retail liquor store is located on James
Island, testified that he would not lose any business if this permit was granted to Petitioner.
6.The Petitioner meets the statutory requirements for holding an off premises beer and
wine permit at the proposed location.
ORDER
Based upon the above Findings of Fact and Conclusions of Law,
IT IS HEREBY ORDERED that the off premises beer and wine permit of Petitioner
Charleston Fine Wine, Inc., d/b/a Total Wine & More of Columbia, Inc. for the location at 1820 A
Ashley River Road, Charleston, South Carolina, be granted upon the Petitioner’s payment of the
required fees and costs, and upon any required final inspections.
AND IT IS SO ORDERED.
_______________________________
CAROLYN C. MATTHEWS
Administrative Law Judge
May 18, 2004
Columbia, South Carolina |