SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before this Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. § 1-23-310 et seq. (2005) for a contested case hearing. Petitioner seeks an on-premises beer and wine permit and a nonprofit private club liquor-by-the-drink license for Zone III, located at 7155 Highway 1, Wallace, South Carolina, in Marlboro County. Respondent denied Petitioner’s application for the permit and license based solely on protests filed by Rev. Earnest J. Reese, Jr., and Thomas Bloomfield, Chairperson Administrative Council, both of Bethel United Methodist Church, regarding the suitability of Petitioner’s business for the requested permit and license. After timely notice to the parties and protestants, the contested case hearing was held on March 14, 2008, at the South Carolina Administrative Law Court in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the location and upon the applicable law, I find that Petitioner’s application for an on-premises beer and wine permit and a nonprofit private club license to sell liquor by the drink should be granted.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence.:

1. On November 6, 2007, Latisha Renee Bailey submitted an application to the Department for an on-premises beer and wine permit and a license to sell liquor by the drink for her businessnonprofit private club, Zone III, located at 7155 Highway 1, outside the corporate limits of Wallace, South Carolina. The business club is located approximately 1 to 1.5 miles from the North Carolina state line. This application and the Department’s file on the application were admitted into the record without objection and marked as Respondent’s Exhibit #1.

2. Notice of Petitioner’s application was published once a week for three consecutive weeks in The Marlboro Herald-Advocate, a semi-weekly newspaper published in Bennettsville and circulated in Marlboro County, and proper notice of the application was posted at the proposed location for fifteen days.

3. Ms. Bailey is over twenty-one years of age and does not have any delinquent state taxes. Further, the South Carolina Law Enforcement Division (SLED) conducted a criminal background investigation of Ms. Bailey that revealed one misdemeanor criminal convictions for Malicious Injury to Personal Property valued less than $1,000 on August 16, 2000, for which she was sentenced to 30 days suspended to 48 hours, but the record does not indicate that she has engaged in any acts or conduct implying the absence of good moral character. The other two co-ownersprincipals, Fred Christon and Tanikka Hough, do not have any criminal convictions, and the record does not indicate that they have engaged in any acts or conduct implying the absence of good moral character. Ms. Bailey is a South Carolina resident and has been for thirty days prior to her application. Mr. Christon is a North Carolina resident.

4. Ms. Bailey and the two co-ownersother principals entered into a lease with an option to purchase of the proposed permitted location on July 1, 2007. The days of operation of the business nonprofit club would be Thursday through Monday. The businessclub would open at 10:00 a.m., except on Sundays, on which day it will open at approximately 43:00-43:30 p.m., approximately an hour after church services are over. No closing time is specified or planned but will be based on business flowhow busy the club is. Mr. Christon, as President of Zone III, understands that he cannot sell, and patrons members cannot consume, liquor after 2:00 a.m. if the club remains open beyond that hour. Mr. Christon is willing to open approximately an hour after church services are over, or 3:00-3:30 p.m., on Sunday. One of the three principals will be onsite at all times acting as manager when the club is open. The club will have eight to ten employees, including professional contracted security.

5. The club is fully equipped for restaurant operations, with seating for at least eighty persons simultaneously at tables for food service. The club would will serve lunch and dinner, including appetizers, “fast food” items” such as french fries and chicken and fish sandwiches, and chicken wings.

6. In addition to food, the club will have computerized music. On Friday and Saturday nights, there will be a live DJ; however, . Th there will not be no live bands. All music will be indoors. The club has paved parking for approximately eighty cars with leased overflow parking that can accommodate up to one hundred and fifty cars. The parking lot is illuminated by seven light poles. The principals plan to pick up trash around the building every day it is open. The building was previously a video poker business at some time prior to two years ago, but the participants are unaware whether that location has ever previously been permitted for alcohol.

7. The club is located in a rural area, with no schools or houses in the immediate vicinity. However, the club’s front door is situated 1556 feet from the front door of Bethel United Methodist Church down the street, as measured by the SLED mapagent and indicated on the map contained in the record. The church owns nineteen acres; 9.25 acres were recently acquired and abuts the club property at the pine tree line on the right side,; and, the church had begun clearing this land prior to Zone III’s application in preparation for a playground, picnic area, possible pool, with plans for a daycare. These facilities cannot be built elsewhere on the church property because much of that property is occupied by a graveyard.

8. The protestants of record, Rev. Earnest J. Reese, Jr. and Thomas Bloomfield, challenge Petitioner’s application on its suitability with regard to its proximity to their church. Pastor Reese states in his written protest that the church “will contest any business that will bring alcohol or gaming near our church.” Mr. Bloomfield protests on the basis that Zone III is located 0.2 miles from the church and wouldill hinder the church program of discouraging adults and youth from drinking alcohol. He also argues it the operation of the club would be disruptive of church services and functions. At the hearing, the protestants expressed specific concerns with the club’s proximity of the club to the church and its impact upon their currently underway plans for a children’s playground, picnic area, possible pool, and planned daycare facility. They are primarily concerned that the club’s close proximity could endangers the safety of children in their church. They are also concerned the club is too close and and contravenes the church’s teaching to its children to avoid alcohol as a drug. Although the video poker business caused no problems for the church, they were unaware of any alcohol licensing there and were never given notice if there was any prior permitting at this location.

CONCLUSIONS OF LAW

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

1. Jurisdiction over this case is vested with the South Carolina Administrative Law Court pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2007), S.C. Code Ann. § 1-23-600(B) (Supp. 2007), and S.C. Code Ann. §§ 1-23-310 et seq. (2005).

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. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).

3. S.C. Code Ann. §§ 61-4-500 through 61-4-620 (Supp. 2007) govern applications for retail beer and wine permits and establish the criteria for determining eligibility for those permits. The basic requirements for licenses to sell liquor by the drink as a nonprofit private club are found in S.C. Code Ann. § 61-6-1600(A) (Supp. 2007) and 23 S.C. Code Ann. Regs. 7-401.4 (Supp. 2007). Further, S.C. Code Ann. § 61-2-100 (Supp. 2007) lays out the general requirements that all applicants for permits and licenses to sell alcoholic beverages must satisfy.

4. S.C. Code Ann. § 61-4-520 (Supp. 2007) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(5)-(6). S.C. Code Ann. § 61-6-1820 (Supp. 2007) sets forth the basic criteria for the issuance of a license to sell liquor by the drink. Although the suitability of the proposed location is not listed in section 61-6-1820 as a condition of licensing, such a consideration is proper. See Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

5. Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness and suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

6. The determination of suitability of location is not necessarily a function solely of geography. Rather, it involves 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); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

7. However, without sufficient evidence of an adverse impact on the community, a permit application must not be denied if the statutory criteria are satisfied. The fact that the issuance of a permit or license is protested is not a sufficient reason, by itself, to deny the application. See 48 C.J.S. Intoxicating Liquors § 166 (2004).

8. Although a day care would not be protected from the statutory distance requirements, the church’s playground would, but only if it is in existence at the time of the application. Child day care centers or other child care institutions would not appear to qualify as ““schools”” that receive protection under the licensing statutes,[1] but playgrounds are protected. See John D. Geathers & Justin R. Werner, The Regulation of Alcoholic Beverages in S.C. 272 (S.C. Bar CLE Div., 2007). “For the purposes of Title 61, a ‘“playground’” is defined as ‘“a place, other than grounds at a private dwelling, which is provided by the public or members of the community for recreation.’”[2]” Id. at 206.

9. The statute setting forth the licensure requirements for retail beer and wine permits does not set forth a proscribed distance between retail locations and nearby protected institutions, like churches, schools, or playgrounds.[3] However, the proximity of a proposed beer and wine retail location to a church, school, playground, or residence is expressly listed in the statutory criteria as a possible “indication[] of unsuitability” of the proposed location,[4] and such proximity is a proper ground, by itself, upon which to find that the proposed location is unsuitable and to deny the application for the retail beer and wine permit.[5] Nevertheless, there is no statutorily proscribed minimum distance between a location licensed for the retail sale of beer and wine and a church, school, or playground,[6] nor is there any maximum distance between a location and a protected institution such that the proximity of the protected institution becomes irrelevant to determining whether the location should be licensed.[7]

Id. at 207.

10. Unlike the flexible proximity standards for beer and wine permits, Section 61-6-120 absolutely precludes the issuance of a liquor license, including a license to sell liquor by the drink, for a place of business located 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.[8] This prohibition upon licensure with the proscribed distance is mandatory and cannot be waived by authorities responsible for the operation of a church, school, or playground within the proscribed distance of a proposed location.[9]

Id. at 208.

11. For the purposes of this statutory prohibition, the distance between a proposed location and a protected institution is “computed by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church, school, or playground.”[10] However, given the complexities of these distance measurements, the Department has promulgated a regulation to further clarify how the measurements are to be made.[11]

Under the proximity statute and clarifying regulation, a distance between a proposed location and a nearby church, school, or playground is measured as follows: (1) starting from the “nearest entrance of the place of business” to be licensed for the sale of liquor;[12] then (2) “following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare”;[13] and finally (3) ending at “the nearest point of entrance” to the “grounds in use” as part of the church, school, or playground in question, or, if closer, at any church or school building in which religious services or school classes are held.[14] The regulation further clarifies that only one entrance to the grounds in use as a church or school shall be considered—namely, the entrance to the grounds nearest an entrance to a church or school building—and that, where no fence is involved, the nearest entrance to the grounds will be determined by a drawing a “straight line” from the public thoroughfare to the nearest door of church or school building.[15]

Id. at 208-09.

12. The minimum required distances cannot be met by vacant land but must be met by grounds and buildings in use. Here, the SLED map shows a distance of 1556 feet from the church front door to the club front door. Thus, the club is not within the statutorily proscribed distances, properly measured. “[O]nce the distance between a church or other protected institution has been determined in an administrative hearing, the church or other institution may be collaterally estopped from contesting subsequent license applications for the location in order to re-litigate the issue of whether the location is within the prohibited distance of its grounds.[16]” Id. at 213. “An alcoholic beverage license should not be denied based on the proximity of the premises to be licensed to, for example, vacant land owned and intended for future use by a church.[17]” Id. at 202.

131. A valid protest cannot be based “solely upon a mere aversion to the sale of alcoholic beverages.[18] Because the South Carolina General Assembly has made the sale of alcohol legal where the requirements of licensure have been met, such blanket objections to the sale of alcoholic beverages, whether based upon religious, moral, or public policy grounds, are more properly directed to the legislature than to the Department or the Administrative Law Court.[19]” Id. at 196.

142. In making a decision in this matter, this court is constrained by the record before it and the applicable statutory and case law. Here, Petitioner meets all of the statutory criteria enacted by the South Carolina General Assembly for the issuance of a beer and wine permit and liquor license, and there has not been a sufficient evidentiary showing that the proposed location is unsuitable for Petitioner’s business or that the issuance of the permit and license in question would create problems in or have an adverse impact upon the surrounding community.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that the Department shall GRANT Petitioner’s application for an on-premises beer and wine permit and a nonprofit private club license to sell liquor by the drink for the premises located at 7155 Highway 1, Wallace, South Carolina.

AND IT IS SO ORDERED.

________________________________

March 2617, 2008 JOHN D. GEATHERS

Columbia, South Carolina Administrative Law Judge

1205 Pendleton Street, Suite 224

Columbia, South Carolina 29201-3731