SC Administrative Law Court Decisions

II. Issue

Does Green meet the requirements for an on-premises beer and wine permit permit in light of an allegation that the location is improper?

III. Analysis

Proper Location

A. Findings of Fact

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

Green asserts she meets the statutory requirements. DOR states it would have granted the permit but for the filing of protests asserting the location is improper. The protestant asserts the permit should be denied since the location is not suitable.

1. General Facts of Location

On or about February 2, 2005, Green filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 320360934. 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, Sheriff Steve McCaskill, Kershaw County Sheriff challenged the application and presented this controversy. The hearing for this dispute was held July 19, 2005, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

The proposed business (and the place where the beer and wine permit will be utilized) is located at 1112 Cherokee Blvd, Elgin, South Carolina and is near the Richland-Kershaw county line. The business is a convenience store and short order grill business with hours of 10:00 a.m. until 10:00 p.m. The operation will provide seating for four and will provide no live music.

2. Specific Facts of Location

a. Statutory Proximity Factors

Churches and schools are in the area but none are in the immediate vicinity. For example, Good Aim Baptist Church is 1 mile from the proposed location. Likewise, Harmony Baptist Church is also 1 mile away. The proposed location's building is not visible from Good Aim Baptist Church or Harmony Baptist Church. Bookman Road Elementary School is 3.4 miles from the proposed location. No other schools are in the area.

b. Other Factors

Police protection for the area is provided by the Kershaw County Sheriff's Office with coverage of the 740 square mile county resting with six deputies. For patrol and response purposes, the county is divided into two halves with each half patrolled by three deputies. Access to the location is provided by Cherokee Blvd. and Stockman Trail. While both are adequate traffic routes for ingress and egress to the proposed location, the area is primarily classified as rural in nature and thus requires police response to negotiate the rural two lane road of Cherokee Blvd. to provide coverage.

Evidence of law enforcement concerns exist at the location. The proposed location was previously operated for several years with an off-premises permit by Don Mentor. During that period, violations occurred for illegal sales to underage purchasers and for sales on Sunday. The location has been subsequently operated by George Lambert for the last several years with an on-premises beer and wine permit.

Other than the beer and wine violations, no other police records of criminal activity at the proposed location of 1112 Cherokee Blvd., Elgin, South Carolina are in this record. For example, while some drug activity is present several miles away near the Richland-Kershaw county line, no law enforcement records establish any drug activity at the proposed location. Further, no residents of the area testified to witnessing drug activity in the area.

The instant application is the only beer and wine permit within approximately 4 miles. The Cherokee Quick Stop is 4 miles away; The Bar is 3.8 miles; C & M Market is 6.8 miles, and EZ Express Mart is 8.6 miles.^[1]

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

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 making such a determination, the proximity of the location to residences, churches, schools, and playgrounds 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 any one of the institutions of residences, churches, schools, or playgrounds 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, no improper proximity to churches and schools are present. Rather, the only churches in the area are a mile away from the proposed location. Further, the only school in the area is 3.4 miles away.

However, in addition, a proper consideration for reviewing a beer and wine permit examines the impact that granting the permit will have upon law enforcement. Evidence that granting the permit will place a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). For example, one measure of the strain is evidence of insufficient police to cover an area. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

Here, the police protection to be provided to the location is already strained. While six deputies cover the 740 square miles of Kershaw County, for patrol and response purposes, the county is divided into two halves with each half having only three deputies available for coverage. In this case, the proposed location is near the Richland-Kershaw county line. Thus, the distance for a response by law enforcement is the most extreme in the county. Accordingly, the evidence demonstrates that an on-premises beer and wine location in this rural area along the two lane road of Cherokee Blvd. will present a strain on law enforcement.

Further, the need for likely police intervention must be examined. For example, evidence exists of an improper location when law enforcement officers have been summoned to the scene on prior occasions when licensed to another party. Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). In this case, former owners have been cited for illegal sales of beer and wine. While no intent is present that Green will make such illegal sales, nonetheless, the fact that such sales have occurred in the past places an extra duty of diligence upon existing law enforcement to see that such acts do not repeat themselves. Thus, law enforcement is again placed upon a greater duty by the granting of the permit. Accordingly, the burden on an already strained law enforcement agency is increased, and such a burden is a sufficient basis for denying the on-premises permit requested here.

In addition, a denial is warranted since no other location in the immediate area has an on-premises beer and wine permit. 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). Here, the area is entirely rural and no other beer and wine permits exist in the immediate community. Rather, the Cherokee Quick Stop is approximately 4 miles away; The Bar is 3.8 miles; C & M Market is 6.8 miles, and EZ Express Mart is 8.6 miles. Thus, the lack of permits in the immediate area is a basis for denying the application here.

A relevant factor is whether in the recent past beer and wine have been sold 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 sold beer and wine in the past and those sales have produced violations. Given that the new owners will continue the same type of business as the former owners, the new business will also provide an atmosphere and conditions that may tend to produce similar violations. Thus, the evidence shows the location is not conducive to granting an on-premises beer and wine permit.

B. 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. While the proposed location is not within an improper proximity to residences, schools, churches, and playgrounds, the permit must be denied due to the strain that granting such a permit will place on law enforcement, due to no other location in the immediate area having an on-premises beer and wine permit, and due to the recent past showing that beer and wine violations have occurred at the same location by former owners when the new owner will continue essentially the same business. See S.C. Code Ann. sec. 61-4-520 (Supp. 2004). Accordingly, Green's application seeks an on-premises beer and wine permit for a location that is not a proper location.

IV. Order

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

DOR shall deny Lizzie D. Green's application for an on-premises beer and wine permit at 1112 Cherokee Blvd., Elgin, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: July 20, 2005

Greenville, South Carolina