SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1998) upon the application of Henry A. Cauthen, III for an on-premises beer and wine permit for Central Area Indian Land located at 9520 Charlotte Highway in Lancaster County, South Carolina. After notice to the parties, a hearing was conducted on October 21, 1998. The issued considered was the suitability of the proposed business location. Based upon the evidence presented, the permit is denied. Any motions or issues raised in the proceedings, but not addressed in this Order are deemed denied pursuant to ALJD Rule 29(C).

I make the following findings of fact, taking into consideration the burden on the parties to establish their respective cases by a preponderance of the evidence, and taking into account the credibility of the witnesses:

1. Petitioner, Henry A. Cauthen, III, submitted an application for an on-premises beer and wine permit with the South Carolina Department of Revenue ("DOR") on January 21, 1998 for the premises located at 9520 Charlotte Highway (Highway 521) in the Indian Land community near the town of Fort Mill, Lancaster County, South Carolina.

2. The proposed location, Central Area Indian Land, is a bar in the common area of a building which houses nine video poker rooms ("Tripp's Video Games"), each containing five video poker machines.

3. Central Area Indian Land has three employees and will be open from 5 p.m. through 12 a.m. on Mondays though Saturdays.

4. Central Area Indian Land is owned by Tripp's, Inc., which also owns the retail licenses for each of the nine video poker businesses in the same building.

5. Petitioner, Henry Cauthen, III, is the sole shareholder of Tripp's, Inc.

6. The proposed location is in a rural community containing both residences and businesses in an unincorporated area of Lancaster County. The building to the right of the proposed location is Rolling Hills feed store, which also sells horse trailers. The building to the left of the proposed location is an auto repair shop.

7. A BP station is located on the other side of the auto repair shop, at the intersection of Highway 521 and Marvin Road, and it holds an off-premises beer and wine permit.

8. The nearest residence is approximately 655 feet from the proposed location.

9. The proposed location is approximately one-half mile from the North Carolina state line in a highly traveled area. The growth of nearby Charlotte, North Carolina has added to the traffic congestion in the area.

10. Highway 521 is a four lane highway divided by a grass median.

11. Someone traveling Highway 521 South cannot enter the proposed location from the highway without first driving through a paved median cross-over south of the location and making a U-turn onto Highway 521 North. The median is only wide enough for one car to fit in the paved cross-over.

12. There is no paved cross-over directly in front of the proposed location.

13. There is a high frequency of traffic accidents in the area of the proposed location.

14. Two fatalities have recently occurred at the intersection of Highway 521 and Marvin Road, approximately 50 yards from the proposed location.

15. Within two months prior to the hearing in this case, three fatalities occurred within a two-week period at the intersection of Highway 521 and Highway 160, approximately 150 yards from the proposed location.

16. In 1997, twenty-nine automobile accidents occurred within one-half mile of the location.

17. The speed limit on Highway 521 is 55 miles per hour.

18. Indian Land has limited resources for police and fire protection.

19. The nearest church is over a mile away from the proposed location.

20. There are no parks near the proposed location.

21. The nearest school is six miles away from the proposed location.

22. Petitioner is over twenty-one years of age.

23. Petitioner has no criminal convictions and is a person of good moral character.

24. Petitioner is a legal resident of the United States.

25. Petitioner has resided in and maintained his principal place of abode in South Carolina for more than thirty days before applying for a beer and wine permit.

26. Petitioner holds beer and wine permits for two other businesses, in Kershaw County and in Lancaster County.

27. Petitioner has never been cited for any violations of the alcoholic beverage control laws.

28. Petitioner has never had a permit to sell beer and wine suspended or revoked.

29. Notice of the application for the beer and wine permit was published in The Lancaster News on March 4, 11, and 18, 1998. Notice was also posted at the proposed location for the time period required.

30. Numerous protests were filed against Petitioner's application. Several petitions were signed by residents of the Indian Land community. Additionally, individual letters from community residents object to the issuance of a beer and wine permit at the proposed location because of the combined elements of video poker, alcohol, the proximity to the North Carolina state line and traffic problems in the area. A letter from the Lancaster County Sheriff objects to issuance of the permit because of the heavy traffic, the unsafe nature of the highway landscape and the frequency of traffic accidents in the area.

31. But for the protests, DOR would have issued the permit.

32. The proposed location is unsuitable for the sale of beer and wine due to the combined elements of traffic problems in the area, the proximity to the North Carolina state line, and the resulting adverse impact upon the community.

DISCUSSION

The Administrative Law Judge is vested with broad discretion in determining the suitability of a location and the issuance of a beer and wine permit. See Fast Stops v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1991); Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). The legislature has provided factors which may be considered in determining the unsuitability of a location. See S.C. Code Ann. § 61-4-520(7) (Supp. 1997) (proximity to residences, schools, playgrounds and churches). Additionally, the courts have recognized that a variety of considerations relating to the nature and operation of the business should be evaluated. See Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). For example, consideration may be given to the extent of highway traffic near a location and whether it is heavily traveled or creates a traffic danger. Id. Indian Land is a rural community with several traffic problems and limited resources for police and fire protection. The growth of nearby Charlotte, North Carolina has added to the traffic congestion in the area. Additionally, several residences are within close proximity of the proposed location. The number of fatalities during accidents and the method to cross the highway create concern for the safety of motorists and residents.

The only reason to go to Tripp's Video Games is for entertainment in the form of video games. The playing of video games, in particular video poker, is a regulated activity by the state. North Carolina prohibits the playing of video poker. See N.C. Gen. Stat. §§ 14-305 and 306 (1993). The prohibition of video poker in North Carolina, the proximity of Tripp's Video Games to the North Carolina state line, and the effect on the community should be considered. Although the playing of video poker is legal in South Carolina, the location chosen by the proposed business near the state line increases the likelihood that persons from North Carolina will travel to play video poker, thereby exacerbating traffic problems in the community. Further, the sale of beer and wine for on-premises consumption at the proposed location inside the common area of businesses for the playing of adult video games in close proximity to the North Carolina state line and residences would have a negative impact on the community. Under these circumstances, the proposed location is unsuitable for the sale of beer and wine.

Based upon the Findings of Fact, I conclude, as a matter of law:

1. Jurisdiction is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 1998) and S.C. Code Ann. §§ 1-23-310, et seq. (Rev. 1986 & Supp. 1998).

2. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]" Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. S.C. Code Ann. § 61-4-520 (Supp. 1998) establishes the criteria for the issuance of a beer and wine permit. Included among the factors for consideration is the suitability of the location. 4. As the trier of fact, the Administrative Law Judge is authorized to decide the fitness or suitability of the proposed business location for a permit to sell beer and wine using broad, but not unbridled, discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5. The determination of suitability of the proposed location is not necessarily a function solely of geography. It may involve an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

6. In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). For example, consideration may be given to the extent of highway traffic near a location and whether it is heavily traveled or creates a traffic danger. Id.

7. Law enforcement considerations are a factor in determining the suitability of a location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973); Palmer v. South Carolina ABC Comm'n. supra.

8. The combined elements of alcohol, heavy traffic and the unsafe nature of the highway landscape, together with the frequency of traffic accidents in the area, would require police attention causing a strain on law enforcement resources. See Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9. Proximity of a location to a church, school, playground, or residence is a proper ground by itself, on which the location may be found unsuitable for a permit to sell beer and wine. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

10. The location of the proposed business is not suitable for the issuance of an on-premises beer and wine permit because of traffic problems in the area, its close proximity to the North Carolina state line and the adverse impact it would have upon the community.

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

ORDERED, that the application of Henry A. Cauthen, III for an on-premises beer and wine permit for Central Area Indian Land located at 9520 Charlotte Highway in Lancaster County, South Carolina is DENIED.

AND IT IS SO ORDERED.

________________________________

ALISON RENEE LEE

Administrative Law Judge

January 29, 1999

Columbia, South Carolina