SC Administrative Law Court Decisions

The Petitioner, Zacharius Grate (Grate) of Georgetown, South Carolina filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit for 163 Annievillage Rd., Georgetown, South Carolina. Viola H. Lawrence, Tena Grate Ponteau, Clara J. Vanderhorst, Kwashanda D. Vanderhorst, Ophelia Vanderhorst, Marie Vanderhorst Vernon, and Paulette Vernon filed a protest seeking to prevent DOR from granting the license. Section 23 S.C. Code Regs. 7-90 (Supp. 1995) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1995).

After considering the evidence and relevant factors, the permit is denied. Any issues raised but not addressed in this Order are deemed denied. ALJD Rule 29(B). Further, filing a motion for reconsideration is not a prerequisite to filing a notice of appeal of this Order. ALJD Rule 29(C).

Does Grate meet the statutory requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995)?

III. Analysis

1. Positions of Parties:

Grate asserts he meets the requirements of the statute. DOR states that due to the protest, no permit could be granted and it awaits the outcome of this hearing. The protestants assert only one basis for denial of the permit: the proposed location is not proper.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about April 1, 1996, Grate filed an application with the Department of Revenue for an on-premises beer and wine permit.

2. DOR identified the application as AI 108237.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is 163 Annievillage Rd., Georgetown, South Carolina.

4. The business is a convenience store operating as Annievillage Convenience Store.

5. A protest to the application was filed by Viola H. Lawrence, Tena Grate Ponteau, Clara J. Vanderhorst, Kwashanda D. Vanderhorst, Ophelia Vanderhorst, Marie Vanderhorst Vernon, and Paulette Vernon.

6. Except for the unresolved issue of suitability of location, DOR would have issued the permit.

7. The hearing on this matter was held July 15, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

b. Moral Character

8. The State Law Enforcement Division (SLED) completed a criminal background investigation of the applicant.

9. The SLED report revealed no criminal violations.

10. The applicant has not engaged in acts or conduct that imply the absence of good moral character.

11. The applicant is of good moral character.

c. Legal Resident and Principal Place of Abode

12. Grate was born in South Carolina and has resided in South Carolina since his birth.

13. Grate holds a valid South Carolina driver's license.

14. Grate currently resides at 163 Annievillage Rd., Georgetown, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

15. Grate, a legal resident of the United States and South Carolina, held such status for more than 30 days prior to the application, and had a principal place of abode in South Carolina for more than 30 days prior to filing the application.

d. Prior Revocation Of Beer or Wine Permit

16. Grate has never had a beer and wine permit revoked.

e. Age

17. Grate's date of birth is April 6, 1959.

18. Grate is over twenty-one years of age.

f. Proposed Location

19. No documented police reports were presented of arrests, convictions, or investigations of criminal activity at the proposed location.

20. The proposed location is 485 feet from a church identified as St. Mary's A.M.E. Church.

21. The operation of the proposed location will not interfere with activities of the church.

22. The proposed location is on the corner of Annievillage Road and Genesis Drive.

23. The proposed location is proximate to 12 residences.

24. One residence, immediately behind the proposed location, is within a distance of 50 feet.

25. Another 11 residences are within a distance of 415 feet from the proposed location.

26. A playground is immediately across Genesis Drive within an approximate distance of 100 feet.

27. The playground consists of an unpaved, dirt and grass area.

28. Residents and their children maintain the playground by mowing the grass and picking up litter.

29. The playground has two basketball goals and is used as a basketball court.

30. The playground is used on occasion for playing baseball.

31. Access to the playground is made by foot traffic.

32. Children in the community use the playground on a daily basis.

33. Only one business establishment, a game room, is in the immediate area.

34. The game room does not hold a beer and wine permit.

35. The nearest seller of beer and wine is approximately 1.5 miles from the proposed location.

36. The area is predominately residential.

g. Notice

37. Notice of the Grate application was published in The Georgetown Times, a newspaper published and distributed in Georgetown County, with notice published on March 2, 9, and 16, 1996.

38. Notice of the Grate application appeared once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Georgetown.

39. Grate gave notice to the public by displaying a sign for fifteen days at the site of the proposed business.

40. Grate gave notice of the application by newspaper advertising and display of signs.

3. Discussion

a. General Criteria

No factual dispute exists in this matter as to the applicant's satisfying the requirements of good moral character, being a legal resident of South Carolina for 30 days, having a principal place of abode in South Carolina for 30 days prior to filing the application, not having had a beer or wine permit revoked within two years of the date of the current application, being at least twenty-one years of age, and providing proper notice of the application by way of newspaper and the display of signs. Rather, the only matter disputed is whether the proposed location is a proper one.

Under S.C. Code Ann. § 61-9-320 (Supp. 1995), no beer and wine permit may be granted unless the location of the place of business is a proper location. In general, consideration may be given to any factor that demonstrates the adverse 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).

Particular attention is given to the proximity of the location to residences and playgrounds since such proximity can be a proper ground by itself to deny the permit. S.C. ABC Comm'n v. William Byers, 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). Permits have been denied for a proposed location directly across the street from a playground area. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). Additionally, it is relevant whether there are already similar existing businesses in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In the instant case, I find the permit request must be denied since the proposed location is proximate to residences, proximate to a playground, and granting the permit introduces an on-premises beer and wine permit into a residential area in which no other similar businesses exists.

b. Criteria Applied

The proposed location is essentially in the middle of a residential community. Immediately behind the proposed location is a residence at a distance of no more than 50 feet. Across Annievillage Road in front of the proposed location are six more residences within a distance of 330 feet. Across Genesis Drive to the right of the proposed location are three more residences at a distance within 415 feet. Additional residences are to the left of the proposed location. Within this residential community exists only one business and this business does not sell beer and wine. The residences are homes for children who frequent the area.

In addition to the proximity to the residences, the proposed location is also improper due to its proximity to the community playground. The playground is immediately across Genesis Drive from the proposed location within an approximate distance of 100 feet. The playground consists of an unpaved area covered by dirt and grass. Residents maintain the playground by mowing the grass and picking up litter. The predominant use of the playground, which has two basketball goals, is as a basketball court but on occasion baseball is also played. Children in the community use the playground on a daily basis. Further, no fence surrounds the playground and access to the playground is by foot traffic.

No similar businesses exist in the area. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the nearest seller of beer and wine is approximately 1.5 miles from the proposed location. Thus, the introduction of an on-premises beer and wine permit into essentially a residential area creates an unwarranted negative change in the community.

4. Conclusions of Law

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

1. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995).

2. The applicant is a legal resident of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and has his principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995).

3. The applicant has not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-9-320(4) (Supp. 1995).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995).

5. Consideration may be given to any factor that demonstrates the adverse 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).

6. 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).

7. The proximity of a proposed location to residences and playgrounds can be a proper ground by itself to deny a permit to a proposed location. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991).

8. Permits have been denied for a proposed location directly across the street from a playground area. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981)

9. The existence of other similar businesses in the area is a factor in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

10. The proximity of the proposed location to St. Mary's A.M.E. Church does not result in the proposed location being an improper location.

11. The proximity of the proposed location to residences in the area results in the proposed location being an improper location.

12. The proximity of the proposed location to the playground in the area results in the proposed location being an improper location.

13. There being no similar businesses in the area, the introduction of an on-premises beer and wine permit into this community creates an unwarranted negative impact upon the community resulting in the proposed location being an improper location.

14. Considering all relevant factors, the proposed location is not a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

15. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-9-320(7) and (8) (Supp. 1995).

16. The applicant does not meet the requirements for the issuance of a beer and wine permit pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).

DOR is ordered to deny Grate's application for an on-premises beer and wine permit at 163 Annievillage Rd., Georgetown, South Carolina.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 29th day of July, 1996.