SC Administrative Law Court Decisions

The Petitioner, John H. Sullivan, d/b/a Christa Lianes Tavern (Sullivan) of Greenville, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for a mini-bottle license for 404 Green Avenue, Greenville, South Carolina. Green Avenue Area Civic Association filed a protest seeking to prevent DOR from granting the license and was allowed to intervene as a party. A hearing on the mini-bottle license is required under S.C. Code Regs. 7-3 (Supp. 1996) and S.C. Code Ann. § 61-6-1820 (Supp. 1996) (upon the written request of a person residing in the county where the license is requested, the department must not issue the license until interested persons have been given an opportunity to be heard.) The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the required hearing under the contested case provisions of S.C. Code Ann. §§ 1-23-600(B), 1-23-310, and 61-2-260 (Supp. 1996). The relevant factors require denying the license.

Does Sullivan meet the requirements for a mini-bottle license?

III. Analysis

1. Positions of Parties:

Sullivan asserts he meets the requirements of the statutes. DOR states that due to the protest, no permit could be granted and it awaits the outcome of this hearing. The intervenor asserts the proposed location is not proper.

2. Findings of Fact:

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

a. General

1. Sullivan filed an application with the DOR for a mini-bottle license.

2. The application is identified by DOR as AI # 111031.

3. The proposed location of the business and the place where the mini-bottle license will be utilized is 404 Green Avenue, Greenville, South Carolina.

4. The nature of the business is that of a tavern providing meals.

5. Protests to the application were filed by the Green Avenue Civic Association.

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

7. The hearing on this matter was held May 28, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

b. Type of Business

8. Sullivan conducts or will conduct a bona fide business engaged primarily and substantially in the preparation and serving of meals.

9. Sullivan's business holds a Class A restaurant license issued by DHEC.

10. Sullivan's business provides or will provide seating at tables for at least forty persons for the service of meals.

c. Moral Character

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

12. The SLED report revealed no criminal violations.

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

14. The applicant is of good moral character.

d. Legal Resident and Principal Place of Abode

15. Sullivan has resided in South Carolina since 1985.

16. Sullivan holds a valid South Carolina driver's license.

17. Sullivan currently resides at 401 Green Ave., Greenville, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

18. Sullivan is both a legal resident of the United States and South Carolina and has held such status for more than 30 days prior to the application, and has held a principal place of abode in South Carolina for more than 30 days prior to filing the application.

e. Prior Revocation Or Suspension

19. Sullivan has never had a beer and wine permit or minibottle license revoked or suspended.

f. Age

20. Sullivan's date of birth is June 7, 1944.

21. Sullivan is over twenty-one years of age.

g. Proposed Location

22. The proposed location has operated with a beer and wine permit for a number of years.

23. No other entities in the immediate vicinity hold a minibottle license.

24. The business will open at 7:00 p.m. and close at 2:00 a.m. on Fridays with future plans for opening on Saturday at 7:00 p.m. and closing at midnight.

25. The area is residential with the closest residence eight (8) feet away from the proposed location.

26. The Green Avenue area is the beneficiary of an extensive revitalization program by the City of Greenville.

27. A former liquor store and private club in the 600 block of Green Avenue were torn down as a part of the revitalization program.

28. In the 500 block of Green, two new houses have recently been built.

29. The revitalization program has produced at least an additional ten new houses in an area immediately off Green Avenue known as Genesis Court.

30. The revitalization area includes approximately seven (7) blocks on either side of Green Avenue and includes Greenville High School.

31. The proposed location is approximately one block from the athletic field and parking area used by Greenville High School.

32. Mount Calvary Baptist Church is 425 feet from the proposed location.

33. The area is not significantly commercial in nature.

h. Notice

34. Notice of the Sullivan application was published in The Greenville News, a newspaper published and distributed in Greenville County, with notice published on September 16, 1996.

35. Notice of the Sullivan application appeared only once.

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

37. Sullivan gave notice of the application by way of required advertising by display of signs.

38. Sullivan failed to give adequate notice of the application by way of required advertising by newspaper.

3. Discussion

a. General Criteria

There is no factual dispute 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 or a liquor license revoked, or being at least twenty-one years of age. The application fails, however, due to the proposed location being improper and a lack of proper notice to the public.

b. Location

Even where the 300 foot rule of § 61-6-120 is not violated, the suitability of the location for a mini-bottle license is a proper consideration. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). In general, consideration may be given to any factors that demonstrate 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). A significant factor is the proximity of the location to 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). In addition whether similar existing businesses are in the immediate vicinity is relevant. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

c. Basis For Decision on Improper Location

I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. Here, the residential character of the community warrants denying a minibottle license to the applicant.

In this case, the evidence unmistakenly presents a residential area within the City of Greenville. The closest residence is only eight (8) feet from the proposed location. The city instituted a revitalization program for the Green Avenue area in an attempt to encourage an atmosphere conducive to maintaining a residential area. The revitalization program has produced the removal of a former liquor store and private club in the 600 block of Green Avenue, the recent construction of two new houses in the 500 block of Green, and the construction of ten additional new houses in an area immediately off Green Avenue known as Genesis Court. The community area undergoing change is not isolated but rather includes at least seven (7) blocks on either side of Green Avenue as well as the neighboring Greenville High School.

The character of the area as a developing residential community is supported by the presence of typical community entities such as the local church, Mount Calvary Baptist, 425 feet from the proposed location and Greenville High School, a block from the proposed location. While both the church and the school are beyond the 300 foot prohibition, the existence of both entities contribute to maintaining the residential community atmosphere of the area and thus are relevant considerations.

Finally, no evidence demonstrates extensive commercial activity in the area. In fact the evidence supports only the existence of a doctor's office and a taxi service in the immediate vicinity. While the tavern business is currently operated by Sullivan under a beer and wine permit, the evidence does not demonstrate any other entity in the area holding a liquor license. Thus, the character of the area will be changed by the granting of a minibottle license. Considering all of the evidence as a whole, the residential community of Green Avenue is not appropriate for the introduction of a minibottle license.

d. Basis for Decision on Notice

Sullivan gave notice of his application in The Greenville News but gave notice only on September 16, 1996. A minibottle license requires publishing a notice once a week for three consecutive weeks. S.C. Code Ann. S.C. Code Ann. § 61-6-1820 (Supp 1996). The party seeking a license has the duty of proving he has met all of the statutory requirements for the license. 48 C.J.S. Intoxicating Liquors § 114 (1981). Sullivan failed to prove notice to the public for the requisite three weeks and thus failed to satisfy the statutory requirements for the license.

4. Conclusions of Law

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

1. Sullivan is or will be engaged primarily and substantially in the preparation and serving of meals or furnishing of lodging. S.C. Code Ann. § 61-6-1820(1) (Supp. 1996).

2. Sullivan has good moral character sufficient for a minibottle license. S.C. Code Ann. § 61-6-1820(2) (Supp. 1996).

3. The proposed location is not within 300 feet of a church, school or playground. S.C. Code Ann. § 61-6-1820(3) and 61-6-120 (Supp. 1996).

4. Even where the 300 foot rule of S.C. Code Ann. § 61-6-120 is not violated, however, the suitability of the location for a mini-bottle license is a proper consideration. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

5. In general, consideration may be given to any factors that demonstrate 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. A significant factor is the proximity of the location to 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).

8. In addition, whether similar existing businesses are in the immediate vicinity is relevant. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

9. The proposed location, considering all factors related to a proper location, is not a proper location for a minibottle license. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

10. Sullivan's single advertisement of his application seeking a minibottle license failed to satisfy the newspaper notice requirement of providing notice at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, municipality, or community in which the applicant proposes to engage in business. S.C. Code Ann. § 61-6-1820(4) (Supp. 1996).

11. Sullivan provided the required sign notice by displaying an appropriate sign for fifteen days at the site of the proposed business. S.C. Code Ann. § 61-6-1820(5) (Supp. 1996).

12. Sullivan failed to provide adequate notice to the public of his application for a license. S.C. Code Ann.§ 61-6-1820(4) (Supp. 1996).

13. Sullivan is of proper age for obtaining a minibottle license. S.C. Code Ann. § 61-6-1820(6) (Supp. 1996).

14. Sullivan's abode within South Carolina and his residency within the United States and the State of South Carolina are proper for obtaining a minibottle license. S.C. Code Ann. § 61-6-1820(7) (Supp. 1996).

15. Sullivan's lack of a criminal record satisfies the statutory requirement for the lack of a felony within ten years prior to the date of the application. S.C. Code Ann. § 61-6-1820(8) (Supp. 1996).

16. Sullivan does not meet the requirements for the issuance of a mini-bottle license since he failed to provide adequate notice and failed to select a site that is a proper location for a minibottle license. S.C. Code Ann. § 61-6-1820(4); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

DOR is ordered to deny Sullivan's application for a minibottle license at 404 Green Avenue, Greenville, South Carolina.

IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 2nd day of July, 1997