ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before the Administrative Law Court (ALC or 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 & Supp. 2003) for a contested case hearing. The Petitioner, Mary Alice Ray, d/b/a Olde
Tyme Liquors, seeks a retail liquor license. The Department of Revenue (Department) made a
Motion to be Excused stating that but for the protests it received, the license would have been
granted. This motion was granted by my Order dated June 15, 2004. A hearing was held on this
matter on June 29, 2004, at the offices of the ALC 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 Petitioner and the
Protestant(s),
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 the
Petitioner, the Department and the Protestants.
2.The Petitioner is seeking a retail liquor license for Olde Tyme Liquors located at
4639 Augusta Highway, Lexington County, Gilbert, South Carolina.
3.The proposed retail liquor store is located in an area of Lexington County outside
the city limits of the Town of Gilbert. If licensed, it will be situated on Augusta Highway, a two-lane main artery leading into Gilbert, with a posted speed limit of 45 m.p.h. This area has been
predominantly residential in the past but has been rapidly expanding commercially. Although this
particular building was a residential property until 1998, the home across the street from the
proposed location is conspicuously running a commercial enterprise from its premises.
The Petitioner is making improvements to the location, both inside and outside, so that it
will be suitable to conduct a business. A blacktop parking lot is going to be installed to the right
of the business to provide parking with an approved handicapped space in the front of the location
that will also serve as a turnaround for exiting cars. The South Carolina Department of
Transportation has approved the parking area and has specifically instructed the Petitioner that it
would be against the law for patrons to park on the shoulder of Augusta Highway.
4.The qualifications set forth in S.C. Code Ann. § 61-6-110 (Supp. 2003)
concerning the age, residency, and reputation of the Petitioner are properly established.
Furthermore, the licensee has not had a license for the sale of alcoholic liquors revoked within the
last five years. Also, the licensee has no criminal record and is of sufficient moral character to
receive a retail liquor license.
5.Although the Petitioner does have an interest in another liquor store, Ms. Ray 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. See S.C. Code Ann. § 61-6-140 (Supp. 2003).
Furthermore, evidence was presented at the hearing as to the aesthetic improvements Ms. Ray
made to her other location at the Saluda traffic circle, along with the positive nature of that
business.
6.Pursuant to S.C. Code Ann. § 61-6-180 (Supp. 2003), notice of the application
was published in a newspaper of general circulation and was lawfully posted at the location.
7.In accordance with S.C. Code Ann. § 61-6-120 (Supp. 2003), there was no
evidence presented that the proposed location is within three hundred feet or unreasonably close
to a school or playground.
8.The Protestants argued that a retail liquor license should not be issued for the
Petitioner’s store because of the close proximity of the proposed location to two nearby
residences and because of the potential traffic problems patrons of the location may cause to those
residents trying to enter and exit the adjacent roadway. Ms. Lawson was also particularly
concerned about the parking area around the location and the potential for customers to park on
the shoulder of Augusta Highway.
9.The Protestant’s parents reside in a home that is approximately 180 feet from the
front door of this location. Also, a vacant family home is an estimated 80 feet from the store.
Though those homes are in close proximity to the proposed location, a lattice fence and
vegetation predominantly shields this location from view. Also, the home of the Protestant’s
parents which is situated directly adjacent to a self storage business, is already in close proximity
to a business that is similar to a retail liquor store.
As to Ms. Lawson’s traffic and parking concerns, as set forth above, parking on the
shoulder of Augusta Highway is strictly prohibited. Moreover, parking will be to the right and
back of the store so as to prevent any visual impairments to nearby residents entering the highway
from their driveways. The handicapped parking space at the front of the store will mostly serve as
a turnaround space for patrons leaving. Also, although this store may generate more traffic in this
general vicinity, evidence was presented that this highway is well traversed and that this area is
growing commercially at a rapid rate. That coupled with the nature of this business as such that
patrons will not hang around the location should alleviate the Protestant’s concerns.
Ms. Lawson’s arguments appear to be based on a sincere concern for the surrounding
community. However, though the evidence offered raises “potential” concerns that this business
may create an overall adverse impact on the community with the increase in traffic, the evidence
did not establish that the granting of the license for this location will have an overall adverse
impact on the community. On the other hand, if the Petitioner permits patrons to park near the
shoulder of Augusta Highway or impairs the visual barriers obstructing the view of this location,
the proposed location would no longer be suitable and the community and/or the Department
could properly bring an action to prohibit the renewal of the Petitioner’s license.
10.Based solely upon the above facts, I find the proposed location to be suitable for a
retail liquor store 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 (1986 & 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 ALC 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 general
requirements for determining eligibility for a retail liquor license.
3.S.C. Code Ann. § 61-6-140 (Supp. 2003) restricts a licensee from possessing more
than three retail licenses while S.C. Code Ann. § 61-6-150 (Supp. 2003) ultimately prohibits an
individual from having an interest in more than three retail liquor stores in the state of South
Carolina. The Petitioner in this case established that she owns only two retail liquor stores in this
State, with this location being the second.
4.As set forth above, no evidence presented that the proposed location is within
three hundred feet or unreasonably close to a school or playground, in contravention to S.C. Code
Ann. § 61-6-120 (Supp. 2003).
5.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). Furthermore, 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 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). Without sufficient evidence of an adverse impact on the community, the application must
not be denied if the statutory criteria are satisfied. In other words, 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).
6.Permits and licenses issued by this state for the sale of liquor, beer and wine are
not property rights. They are, rather, privileges granted in the exercise of the State’s police
power to be used and enjoyed only so long as the holder complies with the restrictions and
conditions governing them. The Administrative Law Court, as the tribunal authorized to grant the
issuance of a permit, may likewise place restrictions or conditions on the permit or license. See
Feldman v. S.C. Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
7.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 Mary Alice Ray d/b/a Olde Tyme Liquors Too
be granted upon the Petitioner’s payment of the required fees and costs.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
July 9, 2004
Columbia, South Carolina |
