SC Administrative Law Court Decisions

II. Issue

Does Whetstone meet the requirements for a retail liquor 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:

On or about July 28, 2004, Whetstone filed an application with the Department of Revenue for a retail liquor license. The application is identified by DOR as AI # 32034921-7. 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, the protestants challenged the application and presented this controversy. The hearing for this dispute was held July 26, 2005, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

The location is within the municipality of Denmark in an area that is sparsely developed with some vacant businesses nearby. Specifically, the proposed business (and the place where the retail liquor license will be utilized) is located at 988 Hagood Street, Denmark, South Carolina. The business will operate within legal hours and on permissible days.

Central Baptist Church is 847 feet from the proposed location. In addition, Victory Temple and Franklin United Methodist are more than two city blocks away from the proposed location and are at distances greater than the distance to Central Baptist Church.

B. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

The only matter disputed here is whether the location is proper. Generally, two criteria dictate the appropriateness of the location of a retail liquor store: the distance to churches, schools, and playgrounds and whether the location is suitable.

1. Distance to Churches

For locations in a municipality, the proposed location cannot be within three hundred feet of any church, school, or playground. S.C. Code Ann. Sec. 61-6-120 (Supp. 2004). Here, the 300 foot rule is not violated.

The nearest church is Central Baptist Church at a distance of 847 feet from the proposed location. In addition, Victory Temple and Franklin United Methodist are more than two city blocks away from the proposed location and are at distances greater than the distance to Central Baptist Church. Thus, no church is within the "no license zone" of 300 feet.

2. Suitable Location

A second criteria for judging the appropriateness of the location of a retail liquor store is whether the location is a suitable location. S.C. Code Ann. Sec. 61-6-910(2) (Supp. 2004). The suitable location issue is a highly factual determination.

In general, consideration may be given to any factors that demonstrate the adverse effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). In fact, in making this determination, geography alone is not the sole suitability consideration, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

While not all inclusive, numerous location factors are considered. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). The impact of the proposed location upon traffic in the area can be a consideration. Palmer, supra. Further, objections to the permit must be based upon adequate factual support. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

Here, no evidence exists of any significant criminal activity at the location nor of any traffic concerns. Likewise, no evidence suggests that loitering will be a concern at the location since the inherent characteristic of a retail liquor license is that customers leave the premises after concluding their purchases.

The basic objection from Pastor James S. Peele of Victory Temple Church of God in Christ 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 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.

Moreover, a retail liquor store already exists in the area and is in close proximity to one of the existing churches. The record establishes a history of compatibility between the existing liquor store and the churches. Accordingly, the granting of the current license does not suggest any disruption will result to church activities.

Therefore, based on the evidence and the law applicable to this case, the license must be granted.

IV. Order

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

DOR shall grant Kathy S. Whetstone's application for a retail liquor license at 988 Hagood Street, Denmark, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: August 3, 2005

Greenville, South Carolina