SC Administrative Law Court Decisions

I. Statement of the Case

Petitioner, Stephanie Brown, d/b/a Brown's Corner and d/b/a Brown's Package, (hereafter "Brown") filed with the Respondent, South Carolina Department of Revenue (hereafter "DOR"), an application for an on-premises beer and wine permit for 6912A Cabin Creek Road, Hopkins, South Carolina and for a retail liquor store license for 6912B Cabin Creek Road, Hopkins, South Carolina. Residents of the community filed protests seeking to prevent DOR from granting the permit and license.

The filing of the protests requires a hearing before the Administrative Law Court (ALC) under S.C. Code Ann. § 61-2-260 (Supp. 2004). Further, since the controversies have arisen from essentially the same set of facts, these cases have been consolidated and were tried as consolidated hearings.

II. Issue

In this matter, not all of the requirements for obtaining a beer and wine permit and for obtaining a retail liquor license are disputed. Rather, in both cases, the dispute is whether the proposed location is a proper location for an on-premises beer and wine permit and for utilization of a retail liquor license.

III. Analysis

A. Findings of Fact:

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

On or about August 19, 2004, Brown filed an application with DOR for an on-premises beer and wine permit and an application for a retail liquor store. The application for the beer and wine permit is identified by DOR as AI 32034749-7 and the liquor license application identified as AI 32034750-3. The beer and wine permit will be in use at 6912A Cabin Creek Road, Hopkins, South Carolina while the liquor license will be used next door at 6912B Cabin Creek Road.

The location under a former owner operated with an off-premises beer and wine permit. However, the instant matter is the first request for either a liquor license or an on-premises beer and wine permit.

The location at which beer and wine will be sold is a convenience store selling foods such as chips and sodas as well prepared food items such as hot dogs and fries. No gasoline pumps are at the store. The location has a pool table for use by its patrons.

Two churches are in the vicinity. The Good Shepard Holiness Church is .2 of a mile from the location and Ladson Chapel Baptist Church is .6 of a mile away. Schools nearby include Hopkins Middle School at 1.6 miles and Hopkins Elementary at 2.3 miles. In addition, a school bus stop is within 50 feet of the location. In addition, the location is frequented by children.

The location for both the on-premises beer and wine permit and the liquor license is in a rural and residential section of Richland County with no appreciable commercial activity in the area. Approximately 40 homes are within a radius of 300 feet of the location.

While no police reports are in the record, evidence exists of law enforcement concerns. For example, drug activity in the immediate area is confirmed by anecdotal evidence from residents of the community who attest to witnessing drug transactions occurring in the community. In addition, residents have observed patrons urinating behind the proposed location.

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

The only matter disputed is whether the location is a proper one for an on-premises beer and wine permit and for a retail liquor license. In such a review, two "proximity" statutes are pertinent. One statute covers beer and wine permits while a second addresses only liquor licenses.

For a beer and wine permit, the proximity to residences, schools, playgrounds, and churches is a mandatory consideration. S.C. Code Ann. § 61-4- 520(7) (Supp. 2004). Indeed, for a beer and wine permit, the sole factor of an improper proximity to any of the protected institutions of residences, schools, playgrounds, and churches 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). However, no absolute prohibition measurements are set by the beer and wine statutes since 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). Thus, deciding whether the proximity is improper for a beer and wine permit must be made on a case by case basis resting upon the peculiar facts of each permit request.

On the other hand, a two step analysis is needed for reviewing a retail liquor license: a distance measurement and a proximity factor.

Under the distance measurement, a "no license zone" may exist for schools, playgrounds, and churches within 300 feet (if in a municipal area) and 500 feet (if in a non-municipal area) of a proposed location. See S.C. Code Ann § 61-6-120 (Supp. 2004) ("[DOR] shall not grant or issue any license provided for in this article or Article 7 of this chapter, 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.").

However, in addition to the distance measurement, case law establishes a second proximity test for a liquor license which applies even if the proposed location is permissible under S.C. Code Ann § 61-6-120 (Supp. 2004). The second test asks whether the proposed location is suitable under a fact-based case by case analysis. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if specific statutory distance criteria are satisfied, a liquor license is properly granted only if the location is a proper location).

Accordingly, for both the beer and wine permit and the retail liquor license, the issue is whether the facts demonstrate that the proposed location is proper. See S.C. Code Ann. § 61-4-520 (Supp. 2004). However, for the retail liquor license only, the second issue is whether the proposed location is within the distance measurements of S.C. Code Ann § 61-6-120) (Supp. 2004).

a. Distance Measurements for Retail Liquor License

The starting point for the analysis of the retail liquor license is the distance measurements of S.C. Code Ann. 61-6-120(A). Since the location under review is not within a municipality, the statute initially imposes a separation of 500 feet between the proposed location and churches and schools.

Here, no evidence disputes the measurement to the churches and schools, all of which are beyond 500 feet. Thus, the proposed location is not in contravention of the distance requirement of 500 feet.

b. Proximity Requirements for Beer and Wine Permit and Retail liquor License

However, notwithstanding the fact that an applicant meets the statutory distance measurements imposed for retail liquors, the retail liquor applicant must nonetheless demonstrate that the location is 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, school, or playground are satisfied, a retail liquor license is properly granted only if the location is a suitable location). Therefore, neither a retail liquor license nor a 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).

i. Specific Limitation on Beer and Wine Permit

Specifically, as to the beer and wine permit, the sole factor of an improper proximity to any one of the institutions of residences, churches, schools, or playgrounds is a basis for denying such 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). Here, after considering all of the factors in this case, an improper proximity to residences and churches exists.

Here, the Good Shepard Holiness Church is slightly over a 1000 feet from the location. In addition, the area lacks any appreciable commercial activity but instead is heavily residential having approximately 40 homes within a radius of 300 feet of the location. Thus, an on-premises beer and wine permit is within an improper proximity to a church and to residences.

ii. Retail Liquor License

The liquor license must also be for a proper location. A proper consideration is examining the impact that granting the permit will have upon law enforcement. Indeed, if criminal activity is already present in the area, adding a liquor license presents an additional burden upon law enforcement to adequately police the area. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992).

Here, the area is rural and has limited police presence since a sheriff's substation is approximately 10 minutes away for a response time. In addition, drug trafficking is already active in the area. Such factors do not weigh in favor of granting a liquor license since such activities place an additional strain on existing law enforcement. Further, public urination is a factor here. Such actions present some evidence that the proposed location lacks control over its patrons.

Further, the extent to which children are in the area of the proposed location is a valid consideration. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). In this case, children are frequent visitors to the convenience store which is next door to the proposed liquor store. In addition, a school bus stop is within the immediate area in which children enter and exit the public transportation. Again, such a factor does not weigh in favor of granting the permit.

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. The proposed location is within an improper proximity to residences and a church so as to warrant denying the on-premises beer and wine permit. Further, other location factors weigh in favor of denying the retail liquor license. For example, granting the license will have a negative impact upon law enforcement, and the presence of children in the immediate area is not conducive to granting the license. Accordingly, Brown seeks an on premises beer and wine permit and a retail liquor license for locations that are not proper locations.

IV. Order

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

DOR shall deny Brown's application for an on premises beer and wine permit and a retail liquor license at 6912A and 6912B, Cabin Creek Road, Hopkins, South Carolina.

AND IT IS SO ORDERED

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: May 3, 2005

Greenville, South Carolina