ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
John A. Sutherland, Jr. (Sutherland) filed with the South Carolina Department of Revenue
(DOR), an application for an off-premises beer and wine permit for 156 East Main Street, Salem,
South Carolina. Protests were filed by Samuel Bass, Robert Hunter, and the Oconee County
Sheriff's Office seeking to prevent DOR from granting the application.
In this matter, not all of the requirements for obtaining a beer and wine permit are disputed.
Rather, the granting or denying of the permit turns upon the disputed matter of whether
Sutherland meets the requirements of having a location that is a proper location.
Protests 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. 2004), 1-23-600(B) (Supp. 2004) and 1-23-310 (Supp. 2004). The evidence and relevant factors require
granting the off-premises beer and wine permit.
II. Issue
Does Sutherland meet the requirements for an off-premises beer and wine permit in light of an
allegation that the location is improper?
III. Analysis
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
Sutherland asserts he meets the statutory requirements. DOR states it would have granted the
permit but for the filing of protests asserting the location is improper. Accordingly, the dispute
is whether the location is proper.
1. General Facts of Location
On or about August 30, 2004, Sutherland filed an application with the Department of Revenue
for an off-premises beer and wine permit. The application is identified by DOR as AI #
32034913-7. The applicant and the location were investigated by SLED, and the investigating
agent drew a map generally depicting the immediate area of the proposed location. Following
the notices posted by SLED and by the applicant, Samuel Bass, Robert Hunter, and the Oconee
County Sheriff's Office challenged the application and presented this controversy. The hearing
for this dispute was held April 19, 2005, with notice of the date, time, place and subject matter of
the hearing given to the applicant, DOR, and the protestants.
The proposed business (and the place where the beer and wine permit will be utilized) is located
at 156 East Main Street, Salem, South Carolina. The business is a convenience store with
business hours primarily from 6:00 a.m. to 9:00 p.m. seven days a week but with shorter hours
on Sunday. The business sells the typical packaged and canned food items handled by most
convenience stores and provides gasoline via on site gas pumps. Finally, the location also
provides a pool table, video games, and provides hot foods such as pizza, hot dogs, and biscuits.
2. Specific Facts of Location
a. Statutory Proximity Factors
Salem Baptist Church is 527 feet from the proposed location and is separated from the location
by Pine Street, an unpaved road. The church owns property that abuts to Pine Street but that
property is currently undeveloped.
Tamassee Salem High, located on the opposite side of the highway from the proposed location,
is at a distance of 861 feet. Further, no residences are on the same side of the street as the
proposed location. In fact, the location is in the Town of Salem with only a few residences in the
area. Thus, considering the overall nature of the area, the area is typical of a small town and is
predominately commercial.
b. Other Factors
The area near 156 East Main Street, Salem, South Carolina has police protection from the Town
of Salem. As for traffic, East Main Street provides an adequate traffic route for the proposed
location, and no law enforcement records show a traffic hazard at this location. In addition,
records of law enforcement officials from the Town of Salem show no violations of laws relating
to beer and wine at the proposed location. Further, no incidents of crime occurring in and
around the proposed location have been entered into this record by the police department for the
Town of Salem. However, the Oconee Sheriff's Office noted that illegal video machines were
recently removed from the premises on January 25, 2005. Finally, while some testimony of area
residents express a concern about drugs, no law enforcement records establish arrests or
convictions involving drugs in the area.
The proposed location of 156 East Main Street, Salem, South Carolina is in an area primarily
classified as that of a small town with the typical mix of businesses and a few residences. For
example, the area is home to Salem Fire and Rescue Video Store, McCall's Taxidermy, a video
store, and the Blue Ridge Mountain Dance Hall. Overall, the area is primarily commercial in
nature.
No businesses or facilities in the immediate area are dedicated to serving children. For example,
no day care centers are in the immediate area.
On the whole, removing all considerations relative to the beer and wine permit, the
establishment itself is an asset to the community. It provides access to gasoline and a convenient
location for obtaining food items.
The proposed location was previously operated as a convenience store from over four years.
During the prior operation, no citations were issued related to beer and wine.
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
Certainly, one must respect the moral grounds of an individual to abstain from the purchase and
consumption of alcohol and the right not to be disturbed by those who do chose to buy and drink
beer, wine, or liquor. Corwin v. Board of Liquor Control, 164 N.E.2d 412 (Ohio 1960) ("We
would not imply that an objection to the issuance of a permit on moral grounds should be
ignored by the director in determining the advisability of issuing the permit. The opposition of
many religious denominations to the sale and use of intoxicants is a commendable one that
should not be lightly regarded."). However, the suitability of a proposed location for the sale of
beer and wine cannot be found wanting based only on the religious convictions of opponents to
an application. Rather, in South Carolina, the sale of alcoholic beverages is a lawful enterprise
which is regulated by the State. One aspect of that regulation is a determination that the proposed
location will be a proper one.
a. Specific Location Considerations
Under S.C. Code Ann. § 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. In deciding when a location is proper,
the proximity of the location to a church and a school 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). Indeed, the sole factor of an improper proximity to either a
church or a school 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).
Here, considering all of the factors of this location, no improper proximity has been shown. For
example, Salem Baptist Church is at a meaningful distance of 527 feet from the proposed
location. Further, the church is physically separated from the location by Pine Street. While the
church owns the property that abuts to Pine Street, the property has not been developed.
Certainly, future plans call for a potential family life center. However, such a use has not been
accomplished over the last several years of ownership. Further, the location has operated in the
recent past with a beer and wine permit. No showing exists in this record demonstrating any
disruption to the church activities during those years. Thus, given that the current operator will
continue essentially the same business, no significant likelihood exists of disruption to the
church.
Likewise, the location is not within an improper distance to Tamassee Salem High. The school
is located on the opposite side of the highway from the proposed location. In addition, it is also
at a meaningful distance of 861 feet from the proposed location. Again, the evidence does not
establish a disruption to the school during the prior owner's operation of this same location.
Thus, when considered as a whole, no improper proximity exists to the school.
b. Other Location Factors
A proper consideration is whether, absent the beer and wine permit, the establishment would be
an asset to the community. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). Here, the
location contributes to the Town of Salem by providing motor fuel and access to food items.
More importantly, a significant factor in this case is whether in the recent past a beer and wine
permit has been in operation 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, the location has been operated for at least
four years with a beer and wine permit by a former owner and nothing in this case shows the
prior ownership to have been a detriment to the community. Thus, since the new owner will
operate in much the same fashion as the prior owner, the granting of the permit is favored by
such a past.
Further, a valid consideration in favor of a request is whether the surrounding area is
substantially commercial. 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 a local town community having a
number of commercial facilities giving the immediate area a predominately commercial flavor.
A consideration is the degree to which children are or are not in the area of the proposed
location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). Here, no evidence establishes the
existence of businesses or facilities in the immediate area dedicated to serving children such as a
day care center.
A proper consideration for reviewing a beer and wine permit is examining the impact granting
the permit 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); Schudel v. S.C. Alcoholic Beverage
Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
Here, the area near the location has no evidence of criminal activity. Records of law
enforcement officials from the Town of Salem demonstrate no violations of laws relating to beer
and wine at the proposed location and no records establish crime as a problem in the general
area. Finally, while some testimony of area residents express a concern about drugs, no law
enforcement records establish arrests or convictions involving drugs in the area.
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). As for traffic, East Main Street
provides an adequate traffic route for the proposed location, and no law enforcement records
show a traffic hazard at this location.
However, from a law enforcement perspective, one act at the location is of some concern. The
Oconee County Sheriff's Office seized two illegal video gaming machines from the location on
January 25, 2005. Under S.C. Code Ann. § 61-4-580(3) "[n]o holder of a [beer and wine] permit
. . . may knowingly [permit gambling or games of chance] . . . upon the licensed premises
covered by the holder's permit." While the presence of such a machine is a serious concern, the
evidence in this case is not sufficient to allow a conclusion that the gaming was performed
knowingly as required by the statute so as to create a violation.
Rather, the evidence here shows that the machines were already on the premises when the
applicant acquired the business from the former owner. Thus, it was not brought to the site by
the applicant. Further, the machines were neither owned by the former owner nor by the
applicant. Instead, the machines were owned by Alexander Amusement who controlled the
machines. Thus, the evidence of the actual use and knowledge of the machines by the applicant
is lacking in this case and makes a finding of "knowingly" unavailable. Indeed, no evidence
shows that the applicant participated in the gaming activity and thus no basis exists to show he
had actual or constructive knowledge of the gaming nature of the machines.
Having addressed the "knowingly" standard, the mere presence of a gaming device on the
premises gives some concern that the applicant has not adequately addressed the laws of South
Carolina as they relate to gaming and beer and wine. Accordingly, when required, it is
appropriate to impose restrictions on the issuance of a permit since the granting of a beer and
wine permit is the granting of a privilege which may be restricted under the police powers of the
State. Feldman v. S.C. Tax Comm’n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits
and licenses are authorized by statute to be issued with restrictions. S.C. Code Ann. § 61-2-80.
Here, the beer and wine permit is restricted as follows:
No permit shall be issued until the applicant contacts SLED and SLED performs a
physical inspection of all video machines on the premises to determine if any
machine is a gaming device. Further, any machines deemed by SLED to be a
gaming device shall be removed. Finally, during the term of the beer and wine
permit, no new machines shall be placed on the premises until such machines are
determined by SLED not to be gaming devices.
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 not within an improper
proximity to churches or school. Further, other location factors do not violate the statutory
requirements for a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 2004).
Accordingly, Sutherland's application for an off-premises beer and wine permit is granted, but
with the restrictions identified here.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR is ordered to grant John A. Sutherland, Jr.'s application for an off-premises beer and wine
permit at 156 East Main Street, Salem, South Carolina but only with the following restrictions:
No permit shall be issued until the applicant contacts SLED and SLED performs a
physical inspection of all video machines on the premises to determine if any
machine is a gaming device. Further, any machines deemed by SLED to be a
gaming device shall be removed. Finally, during the term of the beer and wine
permit, no new machines shall be placed on the premises until such machines are
determined by SLED not to be gaming devices.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: May 19, 2005
Columbia, South Carolina |
