South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Daniel E. McCall, d/b/a The Crazy Horse Saloon vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Daniel E. McCall, d/b/a The Crazy Horse Saloon
197 St. Johns Street, Spartanburg, SC

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-0045-CC

APPEARANCES:
Petitioner & Representative:
Daniel E. McCall, d/b/a The Crazy Horse Saloon, 197 St. Johns Street, Spartanburg, SC, Damien A. Sobieraj, Esquire

Respondent & Representative:
South Carolina Department of Revenue, Dana R. Krajack, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case

Daniel E. McCall, d/b/a The Crazy Horse Saloon (McCall) filed with the South Carolina Department of Revenue (DOR), an application for an on premises beer and wine permit and a minibottle license for 197 E. St. Johns Street, Spartanburg, South Carolina. A protest was filed by several individuals in the community with Reverend Sam Davis acting as spokesperson for the group.

In this matter, not all of the requirements for obtaining a beer and wine permit or minibottle license are disputed. Rather, the disputed matter is whether McCall meets the requirements of having a location that is a proper location. Given the protest under S.C. Code Ann. § 61-4-525, a contested case was held 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). After considering all of the evidence and arguments, the application must be granted.

II. Issue

Does McCall meet the requirements for an on premises beer and wine permit and for a minibottle license 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:

1. General Facts of Location

On or about November 8, 2004, McCall filed an application with the Department of Revenue for an on premises beer and wine permit and minibottle license. The application is identified by DOR as AI # 3203-5467-4. 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, Reverend Sam Davis on behalf of First Baptist Church of Spartanburg and other members of the community challenged the application and presented this controversy. The hearing for this dispute was held March 15, 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 permit and license will be utilized) is located at 197 E. St. Johns Street, Spartanburg, South Carolina. The business is a restaurant with a country and western motif having a dance floor for its patrons. The location will be open Monday through Saturday with a closing hour of 2:00 a.m. However, the location will be closed on Sunday.

2. Specific Facts of Location

The record does not disclose any schools or residences in the immediate area. However, First Baptist Church has two structures in the vicinity with activities at these structures occurring virtually every night of the week. The church's student activities building is on North Converse Street at a distance of 700 feet from the business. Within that 700 feet, Commerce Street acts as a separation between the activities building and the proposed business. The second structure is the church's main facility along North Converse Street at a distance of 733 feet. That structure is separated from the proposed location by North Converse Street.

The record does not contain any data from law enforcement agencies establishing any criminal activity at the proposed business. Further, the parking at the proposed location is sufficient to accommodate the needs of the business and presents no traffic concern due to ingress or egress.

The area surrounding the proposed location is extensively commercial. Indeed, the proposed location is in the heart of the City of Spartanburg with numerous retail and commercial outlets. For example, on the same block as the proposed location are Papa's Breakfast Nook and offices for Spartanburg Water System. Immediately across E. St. John Street is the retail establishment of If It's Paper. Accordingly, the area is home to extensive commercial and retail establishments.

Further, the surrounding area and extended vicinity already house retail outlets providing beer and wine as well as liquor. For example, locations having either beer and wine or minibottles offered for sale to the public within 2000 feet of the proposed location include Delaney's Irish Pub, Magnolia's Street Pub, Miyako Sushi, Abby's Grill, Renato's Italian Restaurant, and Sony's Brick Oven Pizza.

Finally, this same location has been occupied by previous owners who operated businesses utilizing on-premises beer and wine permits as well as minibottle licenses. Such permits and licenses have existed at this location for over ten years and operated as Chasers or Twisters or Papa Sams Restaurant.

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

In reviewing an application for a beer and wine permit and for a minibottle license, 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 minibottle 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, the distance measurement does not apply to any "new applications for locations which are licensed at the time the new application is filed with [DOR]."

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 minibottle license is properly granted only if the location is a suitable location).

Accordingly, for both the beer and wine permit and the minibottle 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 minibottle 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 Minibottle License

The starting point for the analysis of the minibottle license is the distance measurements of S.C. Code Ann. 61-6-120(A). Since the location under review is within the City of Spartanburg, the statute initially imposes a separation of 300 feet between the proposed location and churches.

Here, no evidence disputes the measurement to the structures owned and utilized by First Baptist Church of Spartanburg. The student activities building is at a distance of 700 feet and the main structure of the church is at a distance of 733 feet. Thus, the proposed location is not in contravention of the distance requirement of 300 feet.

b. Proximity Requirements for Beer and Wine Permit and Minibottle License

However, notwithstanding the fact that an applicant meets the statutory distance measurements imposed for minibottles, the minibottle 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 minibottle license is properly granted only if the location is a suitable location). Therefore, neither a minibottle 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 Location Criteria: Proximity To A Church

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 alcoholic beverages 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 proper location is needed for both the minibottle license and the beer and wine permit. However, 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, no improper proximity to a church exists.

In deciding whether the proximity is improper, the purpose and intention sought to be accomplished by the statute is instructive. Dorchester County Dept. of Social Services v. Miller, 324 S.C. 445, 477 S.E.2d 476 (Ct.App. 1996) (cardinal rule of statutory construction is to ascertain and effectuate the intention of the legislature). While the General Assembly in S.C. Code Ann. § 61-4-520 (Supp. 2004) did not explicitly state the purpose to be served by imposing a "proximity" requirement in reference to churches and schools and other institutions and activities, courts in other states with similar laws have explained that such a statute seeks to protect the identified institutions and activities. City of Bastrop v. Johnny's Pizza House, Inc., 712 So.2d 156, (La.App. 2 Cir. 1998) (such statutes seek to ensure that "persons in or entering those protected places will neither have ready access to businesses selling alcohol nor be subjected to viewing or participating in incidents which frequently occur in and around premises where intoxicating beverages are sold."); Taylor Drug Stores, Inc. v. Indiana Alcoholic Beverage Com'n, 497 N.E.2d 932 (Ind.App. 1 Dist. 1986) (such statutes are designed to create "a protective zone from disruption associated with a 'premises' seeking a permit to dispense alcoholic beverages."); Big Bear Markets of Mich., Inc. v. Michigan Liquor Control Commission, 345 Mich. 569, 77 N.W.2d 135 (Mich. 1956) (purpose of the statute is "to protect churches and schools of the State from detriment resulting from proximity to places of business in which intoxicating beverages are sold."). Obviously, determining when that protection has been breached to such an extent that a denial is mandated requires a case by case determination based on the individual facts established.

Here, the facts of the instant case simply fail to show how the proposed location will impose a breach of protection sufficient to deny the permit and license. For example, to establish that protection is warranted, one could demonstrate that past actions of such businesses have disrupted the activities of the church. However, nothing in this record persuasively establishes such a disruption. Indeed, the precise location here under review has operated essentially without interruption with a beer and wine permit and a minibottle license for the last ten years. Nothing in this record persuasively establishes any detriment suffered by the church during the decade these two locations have coexisted.

Further, one cannot overstate the importance of the fact that both the church and the business exist in a downtown metropolis populated extensively by commercial establishments. Such a factor lessens the degree of protection warranted. Moreover, the commercial establishments in the surrounding area already include a number of locations having either beer and wine or minibottles offered for sale to the public. For example, within 2000 feet of the proposed location, beer and wine or minibottles are offered by Delaney's Irish Pub, Magnolia's Street Pub, Miyako Sushi, Abby's Grill, Renato's Italian Restaurant, and Sony's Brick Oven Pizza. Thus, denying the current application will not provide meaningful protection to the church since the area is already extensively alcohol-present.

ii. Location Factors: Other

In addition to the proximity to the church, other factors must be considered in deciding if the beer and wine permit and the minibottle license are to be used at a proper location. Here, no factors warrants denying McCall's application.

Consideration can be given to the impact granting the permit and license will have upon law enforcement. 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 law enforcement records demonstrate the existence of crime. Thus, the presence of crime is not a basis for denial.

In a similar vein, 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). Here, the surrounding roadways provide proper traffic routes for the location. Likewise, no evidence establishes any difficulty entering or leaving the 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). As addressed previously, the area is extensively commercial and other beer and wine and minibottle activities are in the area, and they are similar to that to be operated by McCall. Indeed, such a factor weighs heavily in favor of granting the permit and license. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973) (consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within the area).

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 or measured distances to residences, schools, churches, and playgrounds. Further, other location factors do not violate the statutory requirements for a beer and wine permit and a minibottle license. Accordingly, McCall's application seeks an on premises beer and wine permit and minibottle license for a location that is a proper location.

IV. Order

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

DOR shall grant McCall's application for an on premises beer and wine permit and minibottle license at 197 E. St. Johns Street, Spartanburg, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 28, 2005

Greenville, South Carolina


Brown Bldg.

 

 

 

 

 

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