ORDERS:
FINAL ORDER AND DECISION
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 |