SC Administrative Law Court Decisions

Richard Mahn, Jr. (Mahn) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit, sale and consumption (minibottle) license and alcoholic liqueurs (cooking) license for 2404 Kellytown Road, Hartsville, SC. Protests were filed by numerous members of the community with Rev. John G. Smith, Jr., acting as the spokesperson for the group.

The dispute does not challenge the cooking license. Rather, the challenge is to the beer and wine permit and the sale and consumption license. As to each, only one challenge is made: the location is improper. That challenge has brought this contested case to the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 2000), 1-23-600(B) (Supp. 2000) and 1-23-310 (Supp. 2000). After considering all of the evidence and weighing the relevant factors, the on-premises beer and wine permit, sale and consumption (minibottle) license and alcoholic liqueurs (cooking) license must be granted.

Does Mahn meet the requirements for an on-premises beer and wine permit and a sale and consumption (minibottle) license in light of an allegation that the location is improper?

1. Positions of Parties

Mahn asserts he meets all statutory and regulatory requirements.

DOR states that a permit and license cannot be granted until an inspection is made of the finished facility to satisfy the restaurant requirements of the law and to ensure that a Grade A rating is obtained from the applicable health and sanitation officials. Beyond such requirements, DOR would have granted the permit and license but for the filing of protests asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing.

The protestants assert the permit should be denied since the location is an improper one for a beer and wine permit and a minibottle license.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

A. General Facts of Location

On or about May 7, 2001, Mahn filed an application with the Department of Revenue for an on-premises beer and wine permit, a sale and consumption (minibottle) license, and an alcoholic liqueurs cooking license. The application is identified by DOR as AI # 3202-5291. The applicant and the location were investigated by SLED and the investigating agent drew a map generally depicting the immediate area of the proposed location.

Following the notices posted by SLED and by the applicant, numerous protestants challenged the application with Rev. John G. Smith, Jr., acting as spokesperson for the group. The hearing for this dispute was held Thursday, September 13, 2001, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

The proposed business (and the place where the beer and wine permit and the minibottle license will be utilized) is located at 2404 Kellytown Road, Hartsville, SC. The business is a restaurant with business hours of Tuesday through Saturday, 11:00 a.m. until 10:00 p.m. The operation will provide seating for approximately 100 people while providing complete service restaurant with full time chefs but no live music.. In addition to the restaurant, the location seeks to provide a bar area seating 15.

B. Specific Facts of Location

1. Statutory Proximity Factors

Churches and schools or school facilities are in the area. John Wesley Independent Methodist Church is .5 mile from the proposed location, Kellytown Baptist Church is .6 mile from the proposed location, and Bread of Life Church is .9 mile from the proposed location. West Hartsville Elementary School is .6 mile from the proposed location, and the Hartsville Stadium, a facility used for school sporting events, is .4 mile away.

The immediate area around the proposed location is a mixture of residences and commercial properties. However, only two residences are within 250 feet of the proposed location. Several commercial properties are near the proposed restaurant along Kellytown Road including a convenience store (.7 mile), a Vocational Rehabilitation Center (345 feet) and a cemetery across the street from the restaurant.

2. Other Factors

The evidence does not establish any crime in the area near 2404 Kellytown Road. Indeed, no records of law enforcement officials show incidents of crime occurring in and around the proposed location nor does the evidence suggest any incidents involving drugs.

Traffic flow near the proposed location is provided by Kellytown Road, a two lane highway. Other traffic follows Stadium Road which intersects Kellytown Road near the proposed location. No law enforcement records either identify the area as a traffic hazard or establish the site as a source of accidents.

If no consideration were given to the dispute concerning the on-premises beer and wine permit and the sale and consumption (minibottle) license, the establishment itself as created by Mahn is an asset to the community.

Other beer and wine permits and minibottle licenses are in the area. The area has a Corner Pantry Store, .7 mi away that holds an off-premises beer and wine permit, Renay's Bar & Grill, 2.0 mile away which holds an on-premises beer and wine and a minibottle license. Indeed, the current location was operated in the past as a convenience store and has operated with an off-premises beer and wine permit.

3. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

A. Law of Location Applied to Location Facts

1. Introduction

Under S.C. Code Ann. § 61-4-520 (Supp. 2000), no beer and wine permit may be granted unless the location of the place of business is a proper location. Likewise, a consumption license may not be granted unless the location is suitable. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if specific statutory distance criteria are satisfied, a consumption license is properly granted only if the location is a suitable location).

In deciding if a location is proper, in general, consideration may be given to any factors that demonstrate the effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Geography alone is not the sole consideration of suitability, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

2. Factors Considered

Numerous factors are relevant to a determination of whether a location is proper. In this case, the weighing of those factors require concluding that the location is proper.

a. Churches, Schools, and Residences

A significant factor is the proximity to churches, schools, and residences. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Indeed, for a beer and wine permit, the sole factor of an improper proximity to either a church, a school, or a residential area is a proper basis for denying a beer and wine permit. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). However, whether the proximity is improper depends upon the facts of each case.

Here, churches, schools, and residences are not within an improper proximity to the proposed location.

No church is closer than a half a mile from the proposed location. Rather, John Wesley Independent Methodist Church is .5 mile from the proposed location, Kellytown Baptist Church is .6 mile from the proposed location, and Bread of Life Church is .9 mile from the proposed location. In a similar fashion, no school facility is closer than .4 of a mile in that West Hartsville Elementary School is .6 mile from the proposed location, and the Hartsville Stadium, a facility used for school sporting events, is .4 mile away. Finally, only two residences are within 250 feet.

On these facts, the permit and license do not present an incompatibility with the churches, schools, or residences. No school facility or church is directly adjacent to the location since all are .4 of a mile or more from the proposed location In addition, the restaurant will be closed on Sunday's so as not to present a conflict with Sunday worship activities. As to residences, the hours of operation of the restaurant end at 10:00 p.m. and thus will not conflict with the normal hours of rest and sleep associated with residential living.

Further, the mode of operation of the permit and license will not likely be offensive to the community. For instance, no live music will be present. In addition, the atmosphere of the location demonstrates the business will function as a complete service restaurant with full time chefs presenting a varied menu . Accordingly, based upon all of the facts of this case, the location is not within an improper proximity to churches, schools, or residences.

b. Law Enforcement

A proper consideration for reviewing a beer and wine permit and a consumption license is examining the impact granting the permit will have upon law enforcement. Evidence that granting the permit will place a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

Here, no evidence establishes a problem with a lack of law enforcement or a history of crime in the area. Indeed, no law enforcement officials testified as to any crime in the area nor is any evidence present to suggest drug activity in the area.

Consideration can be given to the extent to which the highway traffic presents a location that is heavily traveled or creates a traffic danger. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, vehicular travel utilize Kellytown Road and no law enforcement evidence demonstrates a traffic hazard at the location.

c. Other Significant Factors

A valid consideration is whether th e surrounding area is substantially commercial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, the proposed location is in a commercial area having a convenience store , a Vocational Rehabilitation Center and a cemetery across the street from the restaurant.

A proper consideration is whether, absent the alcohol dispute, the establishment would be an asset to the community. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). In this case, excluding the dispute as to alcohol, the business will be an asset since the establishment is a full menu restaurant with a wide range of offering s for the community and public in general.

Finally, a proper consideration is whether beer and wine permits or minibottle licenses are already present in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, the area has an off-premises beer and wine permit at a convenience store. Further, a "Bar & Grill" holds an on-premises beer and wine permit and a minibottle license. In addition, the current location was operated in the past as a convenience store holding an off-premises beer and wine permit.

B. Ultimate Conclusion as to Location

I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to churches, schools, or residences. Further, other location factors do not present a basis for denying the permit or license. Accordingly, Mahn's application seeks an on-premises beer and wine permit and consumption (minibottle) license for a location that is a proper location.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

DOR is directed to grant Richard Mahn, Jr.'s application for an on-premises beer and wine permit, a sale and consumption (minibottle) license, and an alcoholic liqueurs (cooking) license at 2404 Kellytown Road, Hartsville, South Carolina upon passing an inspection performed by SLED of the finished facility to satisfy the restaurant requirements of the law and to ensure that a Grade A rating is obtained from the applicable health and sanitation officials.

.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: October 19, 2001

Columbia, South Carolina