ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Juanita Garcia (Garcia) filed with the South Carolina Department of Revenue (DOR), an
application for an on-premises beer and wine permit and a minibottle license for El Sol
Restaurant, 3294 N. Hwy. 25, Travelers Rest, South Carolina. Protests from residents of the
community were filed pursuant to S.C. Code Ann. § 61-4-525 resulting in a contested case
before the Administrative Law Court (ALC) under S.C. Code Ann. §§ 61-2-260 (Supp. 2003), 1-23-600(B) (Supp. 2003) and 1-23-310 (Supp. 2003).
While the application seeks both a beer and wine permit and a minibottle license, at the hearing,
Garcia amended her permit request to seek only a beer and wine permit. Accordingly, the
request for a minibottle license has been withdrawn. Therefore, only the request for a beer and
wine permit remains in controversy.
II. Issue
The issue to be decided is whether the location that Garcia seeks to use for her on-premises beer
and wine permit is a proper location.
III. Analysis
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
On or about April 22, 2004, Garcia filed an application with DOR for an on-premises beer and
wine permit with the application identified by DOR as AI # 32034027-0. The applicant and the
location were investigated by SLED, and the investigating agent drew a map generally depicting
the immediate area surrounding the proposed location of 3294 N. Hwy 25, Travelers Rest, South
Carolina.
The area is only lightly developed. For example, no churches, schools, or playgrounds are
within the immediate area. Likewise, other than the applicant’s residence next door to the
proposed location, no residences are in the immediate area.
Further, the immediate area has only limited commercial activity. For example, a landscaping
and nursery supply business is located next door to the proposed location. In addition, a retail,
farm-produce building is on the other side of the entrance ramp to Highway 11.
As to the presence of beer and wine or alcohol, none exist in the immediate vicinity. Rather, if
granted, Garcia’s business would be the first to utilize an on-premises beer and wine permit in
the area. She seeks the permit to provide beer as a beverage for the meals she serves to her
patrons at her restaurant. The restaurant will operate from 7:00 a.m. to 7:00 p.m. within a
facility that will serve 40 to 50 customers at a time.
The distance from the building’s front door to the first lane of traffic on Highway 25 is 31 feet.
However, of that 31 feet, 16 feet constitutes a “no parking” lane. Thus, only a distance of 15 feet
is available on the front of the business for parking. However, as one faces the building,
parking for patrons is located on the left side of the building. Within that area, approximately 30
vehicles can be accommodated. Vehicles will ingress and egress from Highway 25 and will do
so near the intersection of Highway 25 and the access road to Highway 11.
Highway 25 is a four lane highway with a dividing center median of grass and asphalt. The
speed limit on the highway is 55 miles per hour. The portion of the highway in front of the
proposed location is heavily traveled with an average daily vehicle count of 12,400 for 2002.
The intersection of Highway 25 and Highway 11 has produced several motor vehicle accidents.
For that intersection, the Tigerville Fire Department responded to three accidents in 2001, three
in 2002, six in 2003, and four in 2004 as of November 10.
In addition, Highway 25 North within a five mile distance in either direction of the proposed
location has witnessed a number of traffic fatalities. In 2003, two fatalities occurred and four
fatalities have occurred in 2004.
Further, speeding violations are not uncommon near the proposed location. For example, within
a distance of 2 miles in either direction in front of the proposed location along Highway 25, 64
speeding citations were issued in 2003, and 63 were issued in 2004.
B. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Law of Location Applied to Location Facts
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 making that determination,
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); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). In this case, the
adverse effect imposed by traffic safety concerns and by the lack of similar commercial activity
require denying the request for a permit.
a.Traffic Safety Concerns
Permits may be granted only to enterprises operating at a “proper location.” In making such a
determination, consideration must 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). Here, the proximity of the
facility to the traffic on Highway 25 and to the hazardous intersection of Highway 25 and
Highway 11 render the proposed location an improper one for an on-premises beer and wine
permit.
For example, the distance from the front door of the location to Highway 25 is essentially only
15 feet since the 16 feet of “no parking” abuts to first lane of traffic on Highway 25. Thus, while
most of the parking will be located on the left side of the building, vehicles parked in the front
will present a traffic hazard. Such is especially true given that the traffic count on Highway 25 is
fairly significant with an average daily vehicle count of 12,400. In addition, the hazardous
condition is compounded by evidence of speeding within the area. Within a distance of 2 miles
in either direction in front of the proposed location along Highway 25, 64 speeding citations
were issued in 2003, and 63 were issued in 2004.
Further, regardless of where patrons park, the location is adjacent to the intersection of Highway
25 and Highway 11. That intersection produces a traffic concern when reviewed in light of
patrons leaving a location where an on-premises beer and wine permit is utilized. For example,
considering only the responses made by the Tigerville Fire Department to accidents at the
intersection, three accidents occurred there in 2001, three in 2002, six in 2003, and four in 2004.
Finally, the inappropriateness of an on-premises beer and wine permit for this location is
supported by the existence of a history of traffic fatalities near the proposed location. Here,
based upon a five mile distance in either direction of the proposed location along Highway 25
North, two traffic fatalities occurred in 2003 and four occurred in 2004.
Accordingly, after considering all of the traffic safety factors (inadequacy of front parking,
proximity of parked vehicles to traffic arteries, numbers of vehicles carried on the traffic arteries,
configuration of adjacent intersection, and history of fatalities and accidents), the location is
incompatible with the granting of an on-premises beer and wine permit.
b. Lack of Commercial or Similar Businesses and Permits
A denial of the permit due to safety concerns is bolstered by the general character of the
immediate area. For example, a valid consideration in reviewing a permit is whether the
surrounding area is substantially commercial and whether other similar businesses already sell
beer and wine or alcohol within the area.. 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).
In the instant case, the immediate area has no other beer and wine permit. Further, the vicinity is
not commercial in nature since only a landscaping and nursery supply business plus a retail,
farm-produce building operate in the area. Thus, granting the permit would change the character
of the neighborhood since the surrounding area is not substantially commercial and no other
business within the area sells beer and wine or alcohol for on-premises consumption.
2. 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. While the proposed location is not within an improper
proximity to residences, schools, churches, and playgrounds, the permit must be denied as not
presenting a proper location due to safety concerns and due to the area not being substantially
commercial and not having other similar businesses present. S.C. Code Ann. § 61-4-520 (Supp.
2003). Accordingly, Garcia's application seeks an on-premises beer and wine permit for a
location that is not a proper location.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR is directed to deny Juanita Garcia's application for an on-premises beer and wine permit at
3294 Highway 25 North, Travelers Rest, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: December 21, 2004
Laurens, South Carolina |
