SC Administrative Law Court Decisions

Not all of the requirements for obtaining a beer and wine permit or minibottle license are disputed. Rather, the disputed matter is whether Karrie's Café 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 for a mini-bottle license is denied but the application for an on-premises beer and wine permit is granted.

II. Issue

Does Karrie's Café 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 October 5, 2004, Karrie's Cafe 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 # 312035207-9. 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, protests were filed by members of the area along with that of representatives of Wrenn Memorial Baptist Church. The hearing for this dispute was held 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 1003 Poinsett Hwy., Suite B, Greenville, South Carolina. The business is a restaurant with a menu of more than 30 items. The restaurant will have operating days of Monday through Saturday with a closing hour of midnight. The location will be closed on Sunday.

2. Specific Facts of Location

The record does not disclose any schools in the immediate area. Further, only a few residences are in the immediate area. However, Wrenn Memorial Baptist Church is in the vicinity with activities at the church occurring virtually every night of the week. The church's sanctuary is on Sidney Street. In terms of absolute direction, the church is behind the proposed business but separated by a parking lot owned by Smith Metal Fabricators as well as a fence and a hedge row.

The record does not contain any data from law enforcement agencies establishing criminal activity at the proposed business. As for parking, spaces are not abundant but are adequate for the proposed business. Spaces are available in front of the business as well as on the side. In addition, no law enforcement records establish the location as one prone to safety problems related to ingress or egress.

The area surrounding the proposed location is extensively commercial. Indeed, the proposed location is in the heart of a commercial area fronting on Poinsett Highway with numerous retail and commercial outlets. For example, among others, the immediate area is home to Duke Sandwich Company, a florist shop, a car sales lot, a body repair shop, a tire and auto repair shop, a printing company, a commercial welding company, a coin operated laundry, and a retail floor covering shop. Accordingly, the area is populated extensively by 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 the area include Ruby Tuesdays, Flat Rock, Frodo's and the Peddler.

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]."

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 establishing the distance measurements required by S.C. Code Ann. 61-6-120(A). Since the location under review is not within a municipality, the statute imposes a separation of 500 feet between the proposed location and any church.

In deciding if the 500 feet of separation is present, the controlling regulation is Regs. 7-303.

With respect to a church or a school, the distance shall be measured from the nearest entrance of the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds of the church or school, or any building in which religious services or school classes are held, whichever is the closer.

Accordingly, applying the regulation requires determining the beginning point of the measurement, selecting the ending point of the measurement, and marking the route over which the measurement must be made between the two points.

i. Beginning Point

The beginning point of the measurement is the "the nearest entrance of the place of business." S.C. Code Ann. Regs. 7‑303. Under the facts of this case, the nearest entrance of the place of business to the church is the business' front door. No testimony or evidence identifies another entrance in this case.

ii. Ending Point

Regulation 7‑303 states the ending point is the "the nearest point of entrance to the grounds of the church . . . , or any building in which religious services . . . are held, whichever is the closer." Here, the evidence establishes that the nearest point of entrance to the grounds or of any building which holds religious services is the driveway into the church parking area located on Sidney Street. Thus, that driveway marks the ending point for measurement.

iii. Shortest Route

Having identified both the beginning and ending points, the next consideration is marking and measuring the route between the two points by using "the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare." S.C. Code Ann. 61‑6‑120. Such a measurement is disputed here.

The first point of dispute is deciding what is the route of "ordinary pedestrian or vehicular traffic." "Ordinary" means "normal or customary." Deputy v. du Pont, 308 U.S. 488, 495, 60 S.Ct. 363, 84 L.Ed. 416 (1940). Plainly, the requirement of "ordinary" does not limit the universe of routes to one route since the use of the superlative adjective form of "shortest" means any number of routes can be ordinary. Accordingly, more than one route may be considered "ordinary."

Here, the evidence establishes that it is normal and customary for both pedestrian and vehicular traffic to use either of two routes for ingress and egress: Sidney Street or Poinsett Highway. Thus, both routes are normal or customary and thus both routes are viable means of ordinary pedestrian or vehicular traffic.

However, the fact of multiple ordinary routes does not end the analysis. Rather, what is required is that the route chosen must also be a route that is "along the public thoroughfare" and must be the route that is the "shortest."

Here, two routes are "along the public thoroughfare." When standing in the front door of the proposed location and facing outward, access to two public thoroughfares is available: Sidney Street and Poinsett Highway. Both streets are public, both are thoroughfares since they carry traffic, both are reached in a straight line, both are unobstructed by any building, both are uninhibited by any artifice, and both are accessed by crossing the parking lot in front of the proposed location. Thus, were there no other limitation, either route could form the basis for measurement to the church.

But, obviously, a further limitation exists. The only route that can be used for measurement is that route which is the "shortest." Here, the evidence establishes that the route along Poinsett Highway is 520 feet. The route along Sidney Street to the church is no shorter than 302 feet (such being the distance to the fence post of the church property on Sidney which is reached before the driveway) and is no longer than 442 feet (such being the distance to the front door of the church on Sidney which is beyond the driveway). Thus, the route along Sidney Street is the shortest route.

iv. Conclusion on Distance Measurements for Minibottle License

Accordingly, the distance measured from the nearest entrance of the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds of the church is less than 500 feet. Therefore, the application for a mini-bottle license must be denied. See S.C. Code Ann. 61-6-120(A) and Regs. 7-303.

b. Proximity Requirements for Beer and Wine Permit

A beer and wine permit must be utilized at a location that 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.

As to a 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 the 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.

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. Here, the church is separated from the proposed business by a parking lot owned by Smith Metal Fabricators as well as a fence and a hedge row.

Further, the church and the proposed business exist in a highly commercial area. Such a factor lessens the degree of protection warranted. For example, the immediate area is home to Duke Sandwich Company, a florist shop, a car sales lot, a body repair shop, a tire and auto repair shop, a printing company, a commercial welding company, a coin operated laundry, and a retail floor covering shop.

In addition, 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 the area include Ruby Tuesdays, Flat Rock Grill, Frodo's and the Peddler. 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 will be used at a proper location. Here, no factors warrant denying Karrie's Cafe's application for a beer and wine permit.

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 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 with such activities similar to that to be operated by Karrie's Cafe. Indeed, such a factor weighs heavily in favor of granting the permit. 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. For purposes of a mini-bottle license, the proposed location is within the prohibited 500 feet of a church. Thus, the mini-bottle license is denied. However, for an on-premises beer and wine permit for a restaurant, no improper proximity exists to residences, schools, churches, and playgrounds. Further, other location factors do not violate the statutory requirements for a beer and wine permit. Accordingly, Karrie's Cafe's application seeks an on-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 deny Karrie's Cafe's application for a mini-bottle license but shall grant the application for an on-premises beer and wine permit at 1003 Poinsett Hwy., Greenville, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: July 18, 2005

Greenville, South Carolina