SC Administrative Law Court Decisions

Loraine Springs (Springs) filed with the South Carolina Department of Revenue (DOR) an application for an on-premises beer and wine permit for 989 South Anderson Road, Rock Hill, South Carolina. Since protests were filed by Karen Weaver and Peter A. Valencic, 23 S.C. Code Ann. Regs. 7-90 (Supp. 1997) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 1997), 1-23-600(B) (Supp. 1997) and 1-23-310 (Supp. 1997). No protestants appeared at the hearing. Given the evidence presented and the relevant factors proven, the on-premises beer and wine permit must be granted.

Does Springs meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is improper?

1. Positions of Parties

Springs asserts she meets the statutory requirements. DOR states that since a protest was filed, it cannot grant the permit until a hearing is held. Accordingly, DOR awaits the outcome of that hearing. The protestants made no appearance at the hearing, but their written protests generally assert that the permit should be denied as a location not suitable for an on-premises beer and wine permit.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

a. General

On or about March 25, 1998, Springs filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 121233. The applicant and the location were investigated by the State Law Enforcement Division (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, Karen Weaver and Peter A. Valencic challenged the application. The hearing for this dispute was held Monday, September 14, 1998, 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 will be utilized) is located at 989 South Anderson Road, Rock Hill, South Carolina. The business is a bar in the vicinity of several video poker businesses. The business hours of the location will be from Monday at 7:00 a.m until closing at 11:45 p.m. on Saturday.

b. Proposed Location

i. Statutory Proximity Factors

While Harvest Ministries is .8 of a mile from the proposed location, no other churches are in the area. Based on the evidence presented, the proposed location's building appears not to be visible from Harvest Ministries. Additionally, the business will be closed on Sunday, which is the primary time of operation for the church. Considering all of the factors, the proposed location is not within an improper proximity to the church.

Bellview Elementary School is 1 mile from the location, with the location not visible from the property of the school. No evidence at the hearing established any adverse potential contact between the school and the proposed location. The proposed location is not within an improper proximity to Bellview Elementary School.

The closest residence is within 150 feet. An additional two residences are within 250 feet, three more are within 450 feet and an additional five more are within 650 feet from the proposed location. All of the residences are separated from the location by Anderson Road, a four lane highway. Considering the overall nature of the area in which the beer and wine permit will be used, the immediate area is commercial, with an area of mixed residential and commercial use across the street. Further, the area is zoned commercial. Accordingly, the proposed location is not within an improper proximity to residences in the area.

The closest playground is Spencer Park, 1.3 miles away. No facts establish the nature of the park, the makeup of individuals who frequent the park, or that the park presents any conflict with the proposed location. Further, the playground is a significant distance from the location and is separated from the proposed location by the four-lane highway of Anderson Road. Accordingly, the proposed location is not within an improper proximity to playgrounds in the area.

ii. Other Factors

Anderson Road provides an adequate traffic route for the proposed location and sufficient parking of approximately 60 spaces exist at the location site. The area is home to numerous commercial establishments giving the overall area a predominant commercial nature.

The area has several establishments that hold either a beer and wine permit or an alcohol license. For example, El Cancun is .2 of a mile from the proposed location and it holds both an on-premises beer and wine permit and a minibottle license. Party World and Crow Bar are within .7 of a mile from the proposed location and both establishments hold on-premises beer and wine permits. At least two service stations are within 1,000 feet of the proposed location with both holding off-premises beer and wine permits. The addition of an on-premises beer and wine permit at the proposed location will not adversely alter the character of the area.

Finally, the proposed location was previously operated from approximately 1984 until 1994 by other parties who were licensed to sell beer and wine. During that period of prior operation, no citations were issued related to beer and wine.

c. Moral Character

SLED investigated Springs's criminal background. The SLED report revealed no criminal violations. No other evidence demonstrates that Springs lacks good moral character. Accordingly, Springs is of good moral character.

d. Notice

Notice of Springs's application was published in The Herald of Rock Hill, a newspaper published and distributed in York County, with notice published on March 9, 16, and 23 of 1998. Accordingly, the newspaper notice appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to the public. In addition, Springs gave notice to the public by displaying a sign for fifteen days at the proposed business. The newspaper notice and the posting of a sign establishes that Springs gave notice of the application as required by S. C. Code Ann. § 61-4-520(8) and (9) (Supp. 1997).

e. Legal Resident and Principal Place of Abode

Springs has resided in South Carolina since November 30, 1950, she holds a valid South Carolina driver's license, and she currently resides at 23 Hagins Street, Rock Hill, South Carolina, having had that residence for more than 30 days prior to filing the application for a beer and wine permit. Accordingly, Springs is a legal resident of the United States and South Carolina, 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.

f. Prior Revocation Of Beer or Wine Permit

Springs has not had a beer and wine permit revoked.

g. Age

Springs's date of birth is November 30, 1950. Thus, Springs is over twenty-one years of age.

3. Conclusions of Law

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

a. Uncontroverted Matters

Not all of the requirements for obtaining a beer and wine permit are disputed. For example, no dispute exists that the applicant or any partner or co-shareholder of the applicant, and each of the applicant's agents, employees, and servants who will be employed on the licensed premises have good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 1997). Further, the applicant has been a legal resident of the United States for more than 30 days prior to filing the application, and she has her principal place of abode in South Carolina. S.C. Code Ann. § 61-4-520(2) (Supp. 1997). In addition, 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. § 61-4-520(4) (Supp. 1997). Likewise, no dispute exists that the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1997). Finally, the applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(8) and (9) (Supp. 1997).

b. Disputed Requirements

In this case, the granting or denying of the permit turns upon the disputed matter of whether Springs meets the requirements of the location being proper. See S. C. Code Ann. § 61-4-520(7) (Supp. 1997) (requiring a suitable location).

-- Law of Location Applied to Location Facts

Location Factors: General

Under S.C. Code Ann. § 61-4-520 (7) (Supp. 1997), 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 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).

Location Factors: Proximity

The proximity of the location to residences, churches, schools, and playgrounds is a proper consideration. 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, the sole factor of an improper proximity to any one of the institutions of residences, churches, schools, or playgrounds 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).

Here, no persuasive evidence establishes an improper proximity to residences, churches, schools, or playgrounds. All are separated from the location by a proper distance, and in most instances, the location is not visible to the noted residences, church, school, and playground. In addition, most are separated from the location by a four-lane highway.

Location Factors: Other

Consideration can 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). No evidence in this record establishes that the access to the location will create a traffic hazard or that the parking will be inadequate.

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, numerous commercial activities are in the immediate area. Similarly, consideration may be given to whether other 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). In the instant case, at least five businesses in the area hold beer and wine permits or minibottle licenses. Further, on-premises beer and wine permits are already in the immediate vicinity.

Finally, a relevant factor is whether in the recent past beer and wine have been sold at the same location by former owners and whether the evidence shows that the location is now any less suitable than during the former ownership. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, beer and wine have been sold at the same location from 1984 until 1994. During that time no violations were issued for beer and wine concerns. Accordingly, the location is now no less suitable than it was during the former ownership.

-- Ultimate Conclusion as to Location

I have considered all of the factors relevant to location and I have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to residences, schools, churches, or playgrounds. Further, other location factors establish that granting the permit will not violate the statutory requirements for a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1997).

c. Final Decision

Loraine Springs meets the requirements for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1997).

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

DOR is ordered to grant Loraine Springs' s application for an on-premises beer and wine permit at 989 South Anderson Road, Rock Hill, South Carolina.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

Dated: September 18, 1998

Columbia, South Carolina