South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Luther Gadson, Jr., d/b/a Greeveland vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Luther Gadson, Jr., d/b/a Greeveland
2308 Buchanan Ave., Charleston Heights, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
04-ALJ-17-0064-CC

APPEARANCES:
Petitioner & Representative:
Luther Gadson, Jr., d/b/a Greeveland, Robert L. Gaillard, Esquire

Respondent & Representative:
South Carolina Department of Revenue, Dana R. Krajack, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

I. Introduction


Luther Gadson, Jr. (Gadson) filed with the South Carolina Department of Revenue (DOR) a renewal application for an on-premises beer and wine permit for 2308 Buchanan Avenue, Charleston, South Carolina. Rev. Edward A. McClain, Jr. filed a protest on behalf of residents in the community and on behalf of members of Calvary African Methodist Episcopal Church seeking to deny the granting of the renewal permit. The challenge does not attack all of the requirements for obtaining an on-premises beer and wine permit. Rather, the granting or denying of the permit turns upon the matter of whether the location is proper.


After an initial hearing before the ALC, the matter was returned to DOR with a request to develop further investigative information relative to the location. DOR, with the assistance of SLED, complied and produced a map of the area. The map was provided to all parties as well as the protestants. Upon review of the map, the parties and the protestants notified the ALC that they wished to have the map received in evidence but they had no desire to present additional testimony. Accordingly, the parties and the protestants asked that the matter be decided based on the record made.


II. Analysis


A. Findings of Fact


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


The current location has been operating since at least 1983 with a beer and wine permit. Seeking a continuation of the business, Gadson, on or about January 15, 2004, filed a renewal application with DOR for an on-premises beer and wine permit. The permit is utilized in a business located at 2308 Buchanan Avenue, Charleston, South Carolina with the business known as Greeveland. SLED visited the location and produced a map generally depicting the immediate area surrounding the business.


The immediate area surrounding the business is populated by residences and churches. For example, within a radius of 400 feet, approximately 30 residences and two churches exist. Three other churches are nearby.


The observations of patrons and residents relative to the location of the beer and wine permit are mixed. Some find the business orderly and functioning with no significant problems for the community. Others find the business to be a source of disturbances accompanied by fights and even shootings. However, no police reports document the degree of crime in the immediate area and no testimony from law enforcement establishes crime in the area.


B. Conclusions of Law


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


The beginning point for the analysis of this case is recognizing that DOR, the agency charged with granting or denying the requested renewal, did not find any reason for denying the renewal. Rather, based on the information before it, DOR would have granted the renewal but for the protest. Thus, the only positions seeking to deny the renewal are those presented by the protestants.


Essentially, the protestants advance two positions. First, the location is too close to residences in the area and is within 300 feet of a church. Second, the location presents a business that creates illegal disturbances and will generate a need for law enforcement involvement. However, under the evidence presented in this case, a denial of the renewal permit is unsupported.


1. Churches and Residences


As to the proximity of the location to churches and residences, under S.C. Code Ann. § 61-4-520 (Supp. 2003), no beer and wine permit may be granted unless the location of the place of business is a proper location. In determining when a location is proper, the normal rule of S.C. Code Ann. § 61-4-520(7) is that the proximity of a location to residences and churches is a factor that warrants denying a 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). However, by directive of the General Assembly, the proximity of a location to residences and churches is inapplicable "to locations licensed before April 21, 1986." S.C. Code Ann. § 61-4-520(7) (Supp. 2003).


Here, the location has operated with a beer and wine permit since at least 1983. Thus, as a matter of law, S.C. Code Ann. § 61-4-520(7) (Supp. 2003) is not a basis for denying the renewal request.


Further, it is true that a "no license zone" exists within 300 feet (if in a municipal area) and 500 feet (if in a non-municipal area) of schools, playgrounds, and churches. See S.C. Code Ann § 61-6-120 (Supp. 2003) ("[DOR] shall not grant or issue any license provided for in this article [Article 3] or Article 7 of this chapter [chapter 6], if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality."). (Emphasis added). However, by long established precedent, the law is well settled that the 300 and 500 feet distances apply only to liquor licenses, not to beer and wine permits. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, 303 (1972). Moreover, even when addressing a liquor license, the General Assembly specifically chose not to apply the 300 and 500 feet distances to “the renewal of licenses.” S.C. Code Ann § 61-6-120 (Supp. 2003). Thus, even if the 300 and 500 feet distances could be applied to a beer and wine permit, such could not be applied to the instant case since the permit under review is a renewal.


2. Law Enforcement


As to the second argument, the protestants assert that law enforcement concerns warrant a denial in this case. Certainly, it is true that in making a determination on whether a location is proper, consideration should be given to the need for likely police intervention. For example, does the evidence show that the permit will be in an area that has been a 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). In a similar vein, does the evidence show that law enforcement authorities already 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, however, a failure of proof exists sufficient to deny the permit. For example, this record contains no testimony from any law enforcement officer. On the contrary, the existence of a need for police intervention is asserted through unsubstantiated anecdotal evidence. And, even that evidence is conflicting. Some testimony of patrons and residences asserts the location is orderly and not a problem to the community. But, others express the opposite view and assert that the location is a source of disturbances. Accordingly, no persuasive evidence establishes that the permit will be in an area that has been a source of law enforcement problems or that law enforcement authorities have already had significant problems with public intoxication at or near the location.


Therefore, considering the facts that the location has operated with a beer and wine permit since 1983, that no police reports of violations are in the record, and that the anecdotal evidence of disturbances is conflicting, a denial cannot rest upon the potential and unproven need for future police protection.


3. Long Term Continuous Operation


While two positions seek to deny the permit, significant consideration must be given to the fact that the operation of this location with a beer and wine permit has continued for over twenty years. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). For a location with a continuous operation, the relevant issue is whether the evidence shows that the location is now any less suitable than during the former time periods for which it held a permit or license. Id. Here, given a twenty year history, the evidence is devoid of a showing of what practices were at an acceptable level in the past and of how those practices have now deteriorated to such a point that the renewal should be denied. Such a lack of evidence being the case, the renewal application does not warrant a denial.


III. Order


Thus, after considering all of the factors relevant to the proposed location and after giving due weight to the evidence presented at the hearing, the renewal permit cannot be denied based on the record made in this case. Accordingly, the South Carolina Department of Revenue shall grant to Luther Gadson, Jr., a renewal for an on-premises beer and wine permit to be utilized at 2308 Buchanan Avenue, Charleston, South Carolina.


AND IT IS SO ORDERED

______________________

RAY N. STEVENS

Administrative Law Judge


Dated: October 25, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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