ORDERS:
ORDER AND DECISION
This matter comes before me on the application of Robert C. Faile for a retail liquor license
for a store located at 404 North Main Street in Heath Springs, South Carolina. After notice to the
parties, a group of protestors called Concerned Citizens of Heath Springs moved without objection
to intervene in this action. The hearing was conducted on November 14, 1994. The Protestor moved
to dismiss the application on the basis that the location falls within the 300 feet of a playground which
is prohibited by statute. Evidence on this issue was presented with other evidence relating to the
suitability of the location. Based upon the evidence and testimony presented, I make the following:
FINDINGS OF FACT
1. The applicant, Robert C. Faile, is a legal resident of the United States and has been
a resident of South Carolina all of his life. He is 50 years old and has no criminal record. He is a
person of good moral character.
2. Faile currently holds other licenses issued by the Department of Revenue and Taxation
for the sale and/or consumption of alcoholic liquors. None of these licenses have been suspended or
revoked.
3. Notice of the application was posted at the location and published in the newspaper
once a week for three weeks.
4. The proposed location is 404 North Main Street in Heath Springs. The location is
within the limits of the municipality. Faile operated another retail liquor store approximately 500
yards from the current location. That store closed when the lease was not renewed by the new
owners of the building. The proposed location is diagonally situated across Hwy. 521 (North Main
Street) and the railroad tracks from a playground and park.
5. The playground and park are maintained by the Joint Recreation Commission of
Lancaster County. The property is owned by the City of Heath Springs. Federal grants were used
to develop the property into a recreational area. The use restrictions contained in the grants require
that the entire property be used for recreational purposes and for no other purposes.
6. The park is shaped like a triangle bordered on one side by the railroad tracks. Inside
the park is a tennis court which is fenced and an area with children's play equipment which is fenced
on three sides and open along the railroad tracks. The portion of the property closest to the proposed
location is a grassy area that is not fenced and comes to a point.
7. Although there was conflicting testimony about whether this grassy area was used for
recreational purposes, the preponderance of the evidence is that the grassy area was used for parking
vehicles, picnics, playing ball, riding bicycles and other recreational activities.
8. Measurements were made from the front door of the proposed location to the opening
in the fenced area into the playground by several people. All of them measured a distance in excess
of five hundred feet. Measuring from the front door of the proposed location to the nearest point of
the unfenced area was between 200 and 300 feet.
9. Next door to the proposed location is a gas station convenience store that sells beer
and wine for off-premises consumption.
10. There is only a part time police officer in Heath Springs. If additional law enforcement
is needed Lancaster County Sheriff Deputies must assist. The playground area is located within the
unincorporated area of the county not the Town of Heath Springs. Inside the park there is a sheriff's
substation which is rarely staffed. There are limited resources for police protection in this area.
11. Numerous complaints were made by residents in the area about people loitering
around the liquor store when it was operated by the applicant only a few hundred yards from the
proposed location. The applicant had no knowledge of the loitering. When police officers were
called and responded to the scene, the people would cross into the playground area to avoid the
officers and evade local police jurisdiction. There is no evidence that the loitering was connected
directly to the operation of the store.
CONCLUSIONS OF LAW
1. South Carolina Code of Laws § 1-23-600 (Supp. 1993) grants jurisdiction to the
Administrative Law Judge Division to hear cases under the Administrative Procedures Act.
2. The Division has the powers, duties and responsibilities of a hearing officer in
contested matters governing alcoholic beverages, beer and wine. S.C. Code of Laws § 61-1-55
(Supp. 1993).
3. The sole and exclusive power to grant a retail liquor license in a contested and
protested matter rests in the discretion of the Division. S.C. Code of Laws § 61-3-410 (Supp. 1993);
Wall v. S.C. Alcoholic Beverage Control Commission, 269 S.C. 13, 135 S.E.2d 806 (1977).
4. Section 61-3-420 of the S.C. Code provides the requirements for the issuance of a
retail liquor license. The applicant must be at least 21 years old; a legal resident of the United States
and a resident of South Carolina for at least thirty days before the date of the application; maintain
a principal place of abode for at least thirty days before the date of the application; be of good moral
repute; and not have had any type of liquor license revoked in the five years preceding the application.
S.C. Code of Laws § 61-3-420 (Supp.1993). The applicant meets these statutory requirements.
5. No new licenses may be granted if the place of business is within three hundred feet
of any church school or playground if the business is situated within municipality or within five
hundred feet if the business is outside the municipality. S.C. Code of Laws § 61-3-440 (Supp. 1993).
"Playground" is a "place, other than grounds at a private dwelling, which is provided by the public
or members of a community for recreation." S.C. Code of Laws § 61-3-440 (Supp. 1993).
6. For purposes of measuring the distance prescribed by Section 61-3-440, the distance
shall be measured by from the nearest entrance of the proposed location by following the shortest
route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of
the grounds in use as part of a playground. "The nearest point of the grounds in use as part of a
playground shall be limited to the grounds actually in use as a playground and the grounds necessary
for ingress or egress to such grounds from the public thoroughfare." 23 S.C. Reg. 7-55.
7. The grassy area is part of the playground. It is a place provided by the public for
recreation. The grassy area is used for recreational purposes. There are picnics, bicycle riders, games
of catch, soccer and softball in this area. Any application for a license which is subject to the
statutory restrictions on location in proximity to a playground must be examined carefully by the
Department and this Division. It is the duty of the Department in considering and granting
applications to do so fairly. Any person or organization that does not meet the statutory requirements
should not be issued a license and a license should not be renewed if it was improperly granted.
8. The grassy area of the playground is located less than 300 feet from the entrance of
the proposed location. Pursuant to Section 61-3-440, the application for a retail liquor license must
not be issued. The other issues raised with respect to the location are not considered because the
proposed location is prohibited from obtaining a license based upon is proximity to the playground.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, the application of
Robert C. Faile for a retail liquor license for 404 North Main Street in Heath Springs is DENIED.
AND IT IS SO ORDERED.
______________________________
ALISON RENEE LEE
Administrative Law Judge
December ____, 1994
Columbia, South Carolina. |