SC Administrative Law Court Decisions

Apple J, L.P., d/b/a Applebee's Neighborhood Grill and Bar (Applebee's) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit and a sale and consumption (minibottle) license for 2815 Augusta Road, West Columbia, SC. Protests were filed by Emmett Wilkes and Harry J. Widener seeking to prevent DOR from granting the application.

Protests were filed pursuant to S.C. Code Ann. § 61-4-525 (Supp. 2000) resulting in a contested case before 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 et seq. (Supp. 2000). In this matter, not all of the requirements for obtaining a beer and wine permit or for a mini-bottle licence are disputed. Rather, the only disputed requirement is whether the location is a proper location. After evaluating the evidence and relevant factors, the on-premises beer and wine permit and consumption (minibottle) license must be granted.

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

1. Positions of Parties

Applebee's asserts it meets the statutory 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 11, 2001 Applebee's filed an application with the Department of Revenue for an on-premises beer and wine permit and sale and consumption (minibottle) license. The application is identified by DOR as AI # 3202-5253. 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, Emmett Wilkes and Harry J. Widener challenged the application and presented this controversy. The hearing for this dispute was held Thursday, September 27, 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 at 2815 Augusta Road, West Columbia, SC. The business is a restaurant with business hours of Sunday, 11:00 a.m. until 10:00 p.m.; Monday through Thursday, 11:00 a.m. until 11:30 p.m.; and Saturday, 11:00 a.m. until 12:00 a.m. Seating will be provided for inside dining but no live music will be provided.

B. Specific Facts of Location

1. Statutory Proximity Factors

Central Nazarene Church is 619 feet from the proposed location and (when facing the proposed location with one's back to Augusta Road) the church is located to the left and to the rear of the proposed restaurant on South Woodside Parkway. Only two residences are in the immediate area, and they are at distances of 248 feet and 388 feet.

The immediate area around the proposed location is highly commercial in nature. For example, a large Lowe's retail outlet is next door to the right and to the left is a AAA Taxi service. Across the street is the retail establishment of Shuttle Quality Farm & Equipment. The location is near Interstate I-26 and the location fronts on U.S. Hwy. 1 (Augusta Road).

2. Other Factors

The evidence does not establish any crime in the area near 2815 Augusta 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. Further, traffic flow near the proposed location is adequately provided by U. S. Hwy. 1 (Augusta Rd.) and Interstate I-26. 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 Applebee's will be an asset to the area. In the same vein, the facility will not create an attraction for unsupervised children and, in any event, no evidence shows the presence of children in the immediate area in any significant degree.

Nearby on Hwy. 1 is a Ruby Tuesday's restaurant holding an on-premises beer and wine permit and a minibottle license. Thus, the addition of an on-premises beer and wine permit and a sale and consumption (minibottle) license at the proposed location is not inconsistent with the current character of the area.

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 and Residences

A significant factor is the proximity to churches 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 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 and residences are not within an improper proximity to the proposed location.

Here, the closest church, the Central Church of the Nazarene, is 619 feet from the proposed location. That location is further separated since the church is located to the left and to the rear of the proposed restaurant and is not on the same street. Rather, the church is on South Woodside Parkway while the restaurant is on Hwy 1. As to residences, the area is highly commercial with only two residences in the immediate area. One is at a distance of 248 feet and the second is 388 feet away.

On these facts, the permit and license do not present an incompatibility with the church or residences. The church is on a separate street and, even though a portion of the two properties may meet, the restaurant does not face the church. In addition, no evidence indicates that the operation of the restaurant will prevent or hinder worship services and activities at the church. Further, as to residences, the hours of operation of the restaurant end at between 11:00 p.m. and 12:00 a.m. and thus do not present an unexpected conflict with the normal hours of rest and sleep associated with residential living given the highly commercial nature of Hwy. 1.

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 presenting a varied menu. Accordingly, based upon all of the facts of this case, the location is not within an improper proximity to churches 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 also 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, vehicle operators utilize U. S. Hwy. 1 (Augusta Rd.) and Interstate I-26. No law enforcement records either identify the area as a traffic hazard or establish the site as a source of accidents.

c. Other Significant Factors

A valid consideration is whether the 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, a large Lowe's retail outlet is next door to the right and to the left is a AAA Taxi service. Across the street is the retail establishment of Shuttle Quality Farm & Equipment. Finally, the location is near Interstate I-26 and the location fronts on U.S. Hwy. 1, with both venues presenting an area prone to commercial development.

Given the commercial nature of the location, the area is not one that attracts a high concentration of children. Such a factor weighs in favor of the applicant since the extent to which children are or are not in the area of the proposed location is a valid consideration. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

Further, a proper consideration is whether, absent the beer and wine permit and the minibottle license, the establishment is an asset to the area. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). Here, the business will be an asset since it will be a full service restaurant providing a variety of offerings to the public.

Finally, consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, a Ruby Tuesday's operates a very comparable business in the immediate area and it already has a beer and wine permit and a minibottle license.

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 and residences. Further, other location factors also weigh in favor of granting the permit and license. Accordingly, Applebee's's application seeks an on-premises beer and wine permit and sale 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 Applebee's's application for an on-premises beer and wine permit and sale and consumption (minibottle) license at 2815 Augusta Road, West Columbia, SC 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 23, 2001

Columbia, South Carolina