South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
H & O Foods, Inc., d/b/a Pop's Corner vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
H & O Foods, Inc., d/b/a Pop's Corner
2901 Union Hwy., Gaffney, South Carolina

Respondent:
South Carolina Department of Revenue
 
DOCKET NUMBER:
05-ALJ-17-0086-CC

APPEARANCES:
Petitioner & Representative:
H & O Foods, Inc., d/b/a Pop's Corner, 2901 Union Hwy., Gaffney, South Carolina, Kenneth E. Allen, Esquire

Respondents & Representative:
South Carolina Department of Revenue, Nicholas P. Sipe, Esquire
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case

H & O Foods, Inc (Pop's Corner) filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer and wine permit for 2901 Union Hwy., Gaffney, South Carolina. Protests were filed by Fay R. Mcbee, Kay Pearson, Martha Tatum, and James G. Scruggs seeking to prevent DOR from granting the application. The 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).

II. Issue

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 Pop's Corner meets the requirements of having a proper location.

III. Analysis

A. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

Pop's Corner asserts it meets the statutory requirements. DOR states it would have granted the permit but for the filing of protests asserting the location is improper.

1. General Facts of Location

On or about December 7, 2004 Pop's Corner filed an application with the Department of Revenue for an off-premises beer and wine permit. The application is identified by DOR as AI # 3203-5943-8. 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, protests were filed by Fay R. Mcbee, Kay Pearson, Martha Tatum, and James G. Scruggs challenging the application and presenting this controversy. The hearing for this dispute was held April 26, 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 2901 Union Hwy., Gaffney, South Carolina. The business is a convenience store with gas pumps having business hours of 6:00 a.m. to 11:00 p.m. Monday through Saturday, but closed on Sunday.

2. Specific Facts of Location

a. Statutory Proximity Factors

Berry Memorial Baptist Church is 285 feet from the proposed location. However, the church is separated from the proposed location by Highway 18 since the church is on the opposite of the highway from the proposed location.

The closest residence is 215 feet from the proposed location and several other residences are in the immediate area. One residence is behind the proposed location, one is beside the proposed location but across Garvin Lake Road, and several other residences are across Highway 18 on Berry Drive.

b. Other Factors

Based on the evidence presented, no records of law enforcement officials show any incidents of crime occurring in and around the proposed location. For example, no evidence of beer and wine violations exists here nor do any records of law enforcement show arrests or convictions for drugs in the immediate area.

Highway 18 and Garvin Lake and Berry Drive provide access to the proposed location. No records of law enforcement show any traffic dangers presented by the site.

The proposed location of 2901 Union Hwy., Gaffney, South Carolina is in an area primarily classified as rural in nature with no commercial establishments in the immediate area. However, the general vicinity has 3 establishments that hold a beer and wine permit. Westlane Bowl at a distance of 1.1 miles from the proposed location has an on-premises beer and wine permit. Moss Mini Mart at a distance of 1.4 miles has an off-premises beer and wine permit. Finally, Save Way 18 is 1 mile away, and it has an off-premises beer and wine permit.

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

a. Location Factors: General

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 this case, a general opposition to the location is based on moral grounds.

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.

b. Proximity to Church and Residences

As to a beer and wine permit, a proposed location may be found improper if it is within an improper proximity to residences or churches. 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 or to residences 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 [institutions] 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 fail to show how the proposed location will impose a breach of protection so great as to warrant a denial of the permit. Of significance is the fact that an off-premises permit is sought. With such a permit, no consumption will be allowed on the premises and the typical transaction will occur inside the building followed by the patron then leaving the premises. Thus, such transactions are not intrusive and will not impact the activities of the church or residences.

In addition, both the church and the residences are separated from the proposed location. For example, the church is on the opposite side of Highway 18 and most of the residences are also. In fact, only one residence is behind the property.

Finally, the area is already somewhat populated by sales of beer and wine. For example, Westlane Bowl at a distance of 1.1 miles from the proposed location has an on-premises beer and wine permit. Moss Mini Mart at a distance of 1.4 miles has an off-premises beer and wine permit. Finally, Save Way 18 is 1 mile away, and it has an off-premises beer and wine permit. Thus, denying the current application will not provide meaningful protection to the church or residences since the area is already alcohol-present.

c. Location Factors: Other

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). Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

Here, no records of law enforcement officials show any incidents of crime occurring in and around the proposed location. For example, no evidence of beer and wine violations exists here nor do any records of law enforcement show arrests or convictions for drugs in the immediate 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). Highway 18 and Garvin Lake and Berry Drive provide access to the proposed location, and no records of law enforcement show any traffic dangers presented by the site.

Consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, as explained above, Westlane Bowl, Moss Mini Mart, and Save Way are near by with each having a beer and wine 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 not within an improper proximity to residences or churches. 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, Pop's Corner's application seeks an off-premises beer and wine permit 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 H & O Foods, Inc's application for an off-premises beer and wine permit at 2901 Union Hwy., Gaffney, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: May 19 , 2005

Columbia, South Carolina


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