SC Administrative Law Court Decisions

Matthew Graham (Graham) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 3420 Gee Money Drive, Darlington, South Carolina. Protests were filed by several individuals seeking to prevent DOR from granting the application. R. C. Johnson acted as spokesman.

In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. No dispute exists that the applicant and 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. 1998). Further, 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 occupies a principal place of abode in South Carolina. S.C. Code Ann. § 61-4-520(2) (Supp. 1998). 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. 1998). Likewise, the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1998). Additionally, 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. 1998). Finally, the applicant does not owe the state or federal government delinquent taxes, penalties, or interest. S.C. Code Ann. § 61-2-160 (Supp. 1998). Rather, the granting or denying of the permit turns upon the disputed matter of whether Graham meets the requirements of the location being proper.

Since the permit is challenged, 23 S.C. Code Ann. Regs. 7-90 (Supp. 1998) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 1998), 1-23-600(B) (Supp. 1998) and 1-23-310 et seq. (Supp. 1998). The evidence and relevant factors require granting the on-premises beer and wine permit with restrictions.

Does Graham meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is improper? ⁽¹⁾

1. Positions of Parties

Graham asserts he meets the statutory requirements. Other than the concern over non-functioning bathroom facilities, but for the filing of protests asserting the location is improper, DOR states it would have granted the permit. The protestants assert the permit should be denied since the location is not suitable.

2. Findings of Fact

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

A. General Facts of Location

On or about March 23, 1999 Graham filed an application with the Department of Revenue for an on-premises beer and wine. The application is identified by DOR as AI # 127080. The applicant and the location were investigated by 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, several protestants challenged the application. The hearing for this dispute was held Tuesday, November 23, 1999, 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 3420 Gee Money Drive, Darlington, South Carolina. The business is a bar with business hours of Monday through Friday, 6:00 p.m. until 11:00 p.m. and Saturday, 3:00 p.m. until midnight. The business is closed on Sunday.

B. Specific Facts of Location

1. Statutory Proximity Factors

Two churches are in the area. St. Paul Pentecostal Holiness Church is four tenths of a mile and Black Creek Baptist Church is one quarter of a mile from the proposed location. While no testimony reveals the typical hours of service of the churches, the assumption is that the churches hold services at least on Sunday. Notably, the proposed location is closed on Sunday. In addition, no testimony identifies disturbances during church functions nor any impediment to worship during typical worship hours.

The nearest school is St. John's Elementary at a distance of 7.8 miles, and the nearest school bus stop is 655 feet from the proposed location. Since not specified in the testimony, judicial notice is taken of the general hours of school bus traffic and school room hours of 7:00 a.m. until 3:00 p.m. Again, the hours of operation of the proposed location are 6:00 p.m. until 11:00 p.m. on the typical school days of Monday through Friday.

At least one residence is in the immediate vicinity at a distance of 192 feet. However, overall, the area is primarily rural farm land. Immediately across the highway is a large field and the predominate nature of the community is agricultural. Considering the overall nature of the area in which the beer and wine permit will be used, the area is not primarily a residential area.

2. Other Factors

The testimony does not reveal any incidents of crime occurring in and around the proposed location. Similarly, no drug activity has been reported. While parking along the right-of-way, including the shoulder, of the Dovesville Highway (the highway in front of the location) has been a past practice, no evidence demonstrates law enforcement warnings or accidents. Further, the Dovesville Highway provides adequate traffic flow and a proper means of entering and exiting the location.

While the immediate area has no on-premises beer and wine permits, other beer and wine permits are in the community. For example, in the Dovesville community Keith's Grocery and Jet's Car Wash hold off-premises beer and wine permits. Further, the proposed location has been previously operated as The Blue Light from May, 1976 through May, 1999. During the prior operation, no pattern of violations of the beer and wine statutes resulted. Accordingly, the addition of an on-premises beer and wine permit at the proposed location will not adversely change the character of the area.

3. Conclusions of Law

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

A. Law of Location Applied to Location Facts

1. Location Factors: General

Under S.C. Code Ann. § 61-4-520 (Supp. 1998), 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).

Here, with specific restrictions related to restroom facilities and parking to be imposed as a part of the final order, a consideration of the overall location factors do not demonstrate an adverse consequence by the proposed location upon the community.

2. Location Factors: Proximity

For example, the proximity factors do not require denial of the permit request. The proximity of a 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, considering all factors, the proposed location is not within an improper proximity to the two churches in the area, St. Paul Pentecostal Holiness Church and Black Creek Baptist Church. No testimony establishes disturbances likely to disturb church functions nor impede worship during typical worship hours.

Likewise, the proposed location is not within an improper proximity to schools. The nearest school is 7.8 miles away and the nearest school bus stop is 655 feet from the proposed location. Given the hours of operation of schools (primarily 7:00 a.m. until 3:00 p.m.) and the hours of operation of the proposed location (primarily 6:00 p.m. until 11:00 p.m.), the likelihood of interference with school children is minimal. Thus, the proposed location is not within an improper proximity to schools in the area.

Finally, only one residence is in the immediate vicinity at a distance of 192 feet. Rather, overall, the area is rural farm land with the predominate nature of the community being agricultural. Considering the overall nature of the area in which the beer and wine permit will be used, the area is not primarily a residential area. Accordingly, the proposed location is not within an improper proximity to residences in the area.

3. Location Factors: Other

In addition, consideration of several other factors warrant granting the permit.

One consideration is measuring the impact granting the permit will have upon law enforcement. For example, a relevant consideration is whether the law enforcement officers have had significant problems with public intoxication at or near the location. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Here, no evidence exists of such problems. No testimony establishes that police have been summoned to the scene on prior occasions. Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Likewise, no evidence establishes that the location is near other locations that have been a constant source of law enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

Consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within the area and whether the existing location has sold beer and wine in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, other beer and wine permits are in the Dovesville community in the form of off-premises permits at Keith's Grocery and Jet's Car Wash. Likewise, and a very significant factor in this case, the location when operated by a former owner sold beer and wine for over twenty years with no pattern of violations of the beer and wine statutes shown. Thus, a consistent past practice of proper sales of beer and wine supports issuance of the permit.

Finally, when required, restrictions are appropriate. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1998); 23 S.C. Code Ann. Regs. 7-88 (1976). In this case, restrictions are appropriate.

A relevant consideration is the extent to which highway traffic 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). In this case, the parking of vehicles along the shoulder of Dovesville Highway presents a danger that must be addressed. In fact, the evidence establishes that on some occasions, vehicles park on both sides of the Dovesville Highway. Accordingly, the permit can be granted only upon DOR and Graham prohibiting any vehicles from parking on the shoulder of Dovesville Highway.

B. Ultimate Conclusion as to Location

I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to residences, schools, and churches. Further, other location factors do not require denying the beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1998). Accordingly, with the restrictions identified below, Graham's application for an on-premises beer and wine permit must be granted.

Based upon the Findings of Fact and Conclusions of Law, DOR is ordered to grant Matthew Graham's application for an on-premises beer and wine permit at 3420 Gee Money Drive, Darlington, South Carolina only upon the following conditions:

1. DOR shall inspect the location and determine to its satisfaction that fully functional bathroom facilities are available for patrons on the premises. No new permit shall be issued until DOR finishes its inspection and concludes the location has fully functional bathroom facilities.

2. DOR and Graham shall agree to a restriction upon the permit which will prohibit the parking of any vehicle at any time along the right of way (specifically including but not limited to the shoulder) of Dovesville Highway. The restriction shall become a part of the permit and a violation of this restriction shall be subject to enforcement in the same manner as any comparable violation of the permit itself.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 24, 1999

Columbia, South Carolina

1. DOR initially argued that Graham failed to qualify for a permit since the premises had no operating bathroom facilities. However, at the hearing DOR dropped its opposition since DOR and Graham stipulated in open court that if a permit were granted, the permit would be conditioned upon the proposed location having operating bathroom facilities. Accordingly, only the location issue remains for resolution.