ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
The Dugout filed with the South Carolina Department of Revenue (DOR), an application for an
on-premises beer and wine permit and a sale and consumption (minibottle) license for 2695 Oak
Street Extension, Conway, South Carolina. A protest was filed by W.P. and Irene Altman
pursuant to S.C. Code Ann. Sec. 61-4-525 resulting in a contested case before the Administrative
Law Court (ALC) under S.C. Code Ann. Sections 61-2-260 (Supp. 2004), 1-23- 600(B) (Supp.
2004) and 1-23-310 (Supp. 2004). The evidence and relevant factors require granting the beer
and wine permit and the sale and consumption (minibottle) license, but both granted with
restrictions.
II. Issue
Does the Dugout meet the requirements for an on-premises beer and wine permit and a sale and
consumption (minibottle) license?
III. Analysis
Based on the preponderance of the evidence, the following findings of fact are entered:
A. Findings of Fact
On or about August 11, 2004, the Dugout filed an application with the Department of Revenue
for an on-premises beer and wine permit and a sale and consumption (minibottle) license. The
application is identified by DOR as AI # 32034653-1.
The applicant and the location were investigated by SLED and the investigating agent drew a
map generally depicting the immediate area. The location will operate as a private club and will
utilize the beer and wine permit and minibottle license at 2695 Oak Street Extension, Conway,
South Carolina. No churches, schools, or playgrounds are in the immediate area.
However, one residence is less than 200 feet from the front door of the location. A fence
separating the proposed location from the residence is in disrepair. Further, sound from the
interior of the proposed location has been a noise factor in the past.
The record does not establish the area to be a high crime area. Further, no law enforcement
records have been presented of crimes at the location nor is there a record of problems with
traffic routes for the location.
When considered as a whole, the area is primarily commercial in nature. A construction site is
nearby, and a grocery store and an upholstery shop are in the immediate vicinity. While there
are some residences in the area, only one is with 200 feet, and there is no evidence of the
presence of children in any significant degree.
The application here is not the first alcohol permit in the immediate area. Rather, the area
already has establishments that hold alcohol permits or licenses. For example, a beer and wine
permit at Al's Grocery Store is essentially in the same block. Thus, the granting of the permit
and license here will not significantly change the character of the area.
Further, the proposed location has been operated with a beer and wine permit and a minibottle in
the past. In fact, the prior operation was as a private club as well.
B. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
Under S.C. Code Ann. Sec 61-4-520 (Supp. 2004), no beer and wine permit may be granted
unless the location of the place of business is a proper location. 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). 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).
Further, a minibottle license must not only meet the distance measurements imposed by statute,
but also must meet the requirement that the location be a suitable location. Schudel v. South
Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if the specific statutory
distance criteria of 500 feet or 300 feet to a church or school are satisfied, a minibottle license is
properly granted only if the location is a suitable location).
Thus, for both the beer and wine permit and for the minibottle license, to grant the permit and
license, the analysis must conclude that the location is proper.
In this case, the evidence does not show any improper proximity to any of the protected
institutions of churches, schools, or playgrounds. And, as to the beer and wine permit and
proximity to residences, only one is within 200 feet. With sufficient restrictions, no improper
proximity exists to residences.
A proper consideration for reviewing a location is examining the impact granting the permit or
license will have upon law enforcement. Moore v. S.C. Alcoholic Beverage Control Comm'n,
308 S.C. 167, 417 S.E.2d 555, 556 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973);
Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975).
Here, no evidence of law enforcement concerns warrants denying the application.
Further, 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). Again, here, no evidence shows any
problem with the traffic routes available to this location.
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, the area is primarily commercial
with several establishments nearby including a grocery store and an upholstery shop.
Also, consideration is given to the extent to which children are in the area of the proposed
location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). The evidence does not show the
presence of children.
Finally, consideration may be given to whether other similar businesses that sell beer and wine
or alcohol already exist within the area and 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 time period. Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973). Here, other beer and wine locations are within the area and the current
location has sold beer and wine and minibottles in the recent past. The evidence does not show
that the location is any less suitable today than it was in the past.
Having considered all of the factors relevant to the proposed location and having given due
weight to the evidence presented, the proposed location is not within an improper proximity to
residences, schools, churches, and playgrounds. However, given that a single residence is within
200 feet, to assure that the peace and quiet traditionally associated with residential living is
maintained, the ALC may place restrictions on the permit and license. See Feldman v. S.C. Tax
Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
Here, noise and separation from the proposed location needs to be controlled. Indeed, in a
December 3, 2003 order from the ALC issued to a former owner of this location, noise and
separation factors required restrictions. Similar restrictions are imposed here and are as follows:
(1) No permit or license can be granted until the existing privacy fence is fully repaired. Such
repair shall include achieving a fence construction that has no breaks, no sags, and no wavy
appearance. Further, such repair shall not be accomplished by diagonal ground braces.
(2) After the fence is repaired and the permit and license are issued, no music, whether live or
recorded, shall be heard beyond the property boundaries of the subject location.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR shall grant the Dugout's application for an on-premises beer and wine permit as well as a
minibottle license with both as restricted above.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: March 16, 2005
Columbia, South Carolina |
