South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Wanda Powell, d/b/a Buckshots vs. DOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioner:
Wanda Powell, d/b/a Buckshots
12441 Long Creek Highway, Long Creek, South Carolina

Respondent:
South Carolina Department of Revenue

Intervenors:
Long Creek Fire Department, Long Creek Baptist Church, and Damascus Baptist Church
 
DOCKET NUMBER:
03-ALJ-17-0174-CC

APPEARANCES:
Wanda Powell
Petitioner, pro se

Kenneth E. Allen, Esquire
For Intervenors and Protestants
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before this tribunal pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002) for a contested case hearing. Petitioner Wanda Powell seeks an on-premises beer and wine permit for an establishment located at 12441 Long Creek Highway in Long Creek, South Carolina. The South Carolina Department of Revenue (Department) would have granted the permit but for the protests filed by several local residents and organizations regarding the suitability of the proposed location. Accordingly, the Department was excused from appearing at the hearing of this case. Further, by an Order dated June 20, 2003, this tribunal granted the Long Creek Fire Department, the Long Creek Baptist Church, and the Damascus Baptist Church leave to intervene in this matter in opposition to Petitioner’s requested permit.

After timely notice to the parties and the protestants, a hearing of this case was held on June 25, 2003, at the Administrative Law Judge Division in Columbia, South Carolina. Based upon the evidence presented regarding the suitability of the proposed location and upon the applicable law, I find that Petitioner’s application for an on-premises beer and wine permit must be denied.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing of this matter, and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

1.On February 25, 2003, Petitioner Wanda Powell submitted an application to the Department for an on-premises beer and wine permit for an establishment located at 12441 Long Creek Highway, Long Creek, South Carolina. Without objection, this application and the Department’s file on the application were made a part of the record by reference.

2.Petitioner is a person of good moral character and has no record of any criminal convictions. Further, Petitioner has no record of violating the laws governing the sale of alcoholic beverages, and has not had a beer and wine permit issued to her suspended or revoked.

3.Petitioner is at least twenty-one years of age, is a legal resident and citizen of the Untied States, and is a legal resident and citizen of the State of South Carolina. In addition, Petitioner resides and maintains her principal place of abode in South Carolina, and did so for at least thirty days prior to making her application for a beer and wine permit.

4.Notice of Petitioner’s application was published in the Daily Journal, a newspaper published in Seneca, South Carolina, with general circulation in Oconee County, for three consecutive weeks, and proper notice of the application was posted at the proposed location for fifteen days.

5.Petitioner seeks to open a tavern, known as Buckshots, offering beer and wine for on-premises consumption, at the proposed location. While the location is currently closed for business, it was operated by Petitioner and subsequently by a renter as the Long Creek General Store between 2000 and January 2003. Footnote During that time, the location was licensed for the sale of beer and wine for off-premises consumption.

6.The proposed location is situated along Highway 76 in the town of Long Creek in a rural portion of Oconee County in upstate South Carolina. Footnote In the general area surrounding the proposed location there are several businesses, including a family restaurant and a craft store, at least two residences, Footnote and the Long Creek Fire Department, whose buildings include both the firehouse and an adjoining community center. The community center, which is in view of the proposed location, is used for community functions, such as fund-raising dinners and community meetings, and is rented out, often on weekends, for special events, such as family reunions and church functions. There are no schools in the immediate vicinity of the location, and the nearest church is approximately four-tenths of a mile from the establishment.

While there are no playgrounds, designated as such, within the vicinity of the proposed location, there is a large field located between the Fire Department/community center and the proposed establishment that is used for recreational purposes by the local community. The field is owned by the Fire Department and was, at one time, arranged and equipped as a softball field. Currently, however, the field is not designated or equipped as a playground, softball field, or other recreational facility. Nevertheless, the field is frequently used by the Long Creek community and visitors to the community for recreation, particularly while events are being held at the community center. Footnote Many of these events take place on the weekend and most events involve both adults and children. The proposed location is in plain view of and directly abuts upon this community field.

7.Intervenors’ and the protestants’ objections to the issuance of Petitioner’s requested permit are primarily two-fold. First, Intervenors and the protestants are worried that intoxicated individuals leaving the proposed location will create a danger to themselves and others by attempting to drive their cars and motorcycles along the hazardous curves and hills of Highway 76. Second, Intervenors and the protestants are concerned about the effect the activities at the proposed location will have upon community recreational activities on the adjoining field, particularly those activities involving children. In response to these concerns, Petitioner testified that she will run a clean, orderly business that will not have an adverse impact on the surrounding Long Creek community.

CONCLUSIONS OF LAW

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

1.Jurisdiction over this case is vested with the Administrative Law Judge Division pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2002) and S.C. Code Ann. §§ 1-23-310 et seq. (1986 & Supp. 2002).

2.“[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed[.]” Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 248, 317 S.E.2d 476, 477 (Ct. App. 1984); see also Wall v. S.C. Alcoholic Beverage Control Comm’n, 269 S.C. 13, 235 S.E.2d 806 (1977).

3.S.C. Code Ann. § 61-4-520 (Supp. 2002) establishes the criteria for the issuance of a beer and wine permit. Included in the criteria is the requirement that the proposed location be a proper and suitable one. See id. § 61-4-520(6)-(7). Of particular relevance in this determination of suitability is the proximity of the location “to residences, schools, playgrounds, and churches.” Id. § 61-4-520(7) (emphasis added).

4.Although “proper location” is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness and suitability of a particular location for the requested permit. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).

5.The determination of suitability of location is not necessarily a function solely of geography. Rather, it involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Schudel v. S.C. Alcoholic Beverage Control Comm’n, 276 S.C. 138, 276 S.E.2d 308 (1981).

6.Further, in determining whether a proposed location is suitable, it is proper for this tribunal to consider any evidence that shows adverse circumstances of location. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985); Palmer v. S.C. Alcoholic Beverage Control Comm’n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (citing Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972)).

7.And, the proximity of a proposed location to a church, school, residence, or playground is a proper ground, by itself, upon which to find a location unsuitable and to deny a beer and wine permit for that location. Byers v. S.C. Alcoholic Beverage Control Comm’n, 305 S.C. 243, 407 S.E.2d 653 (1991).

8.In sum, “a liquor license or permit may be properly refused on the ground that the location of the establishment would adversely affect the public interest, that the nature of the neighborhood and of the premises is such that the establishment would be detrimental to the welfare . . . of the inhabitants, or that the manner of conducting the establishment would not be conducive to the general welfare of the community.” 48 C.J.S. Intoxicating Liquors § 121, at 501 (1981).

9.In the case at hand, the proximity of the proposed location to the community recreational field and community center renders the location unsuitable for Petitioner’s proposed establishment.

While the Fire Department field abutting the proposed location is not specifically designated or equipped as a park or playground, the field, along with the adjoining community center, is an important recreational gathering place for both the adults and children of the Long Creek community. This field is the site of frequent community gatherings, including community meetings, charity potluck dinners, family reunions, church functions, and sporting activities. These gatherings typically occur on the weekend and typically involve children, who often play in the field during the events. The proposed location directly abuts this community field, without any sort of buffer or barrier between the two properties, and, consequently, sits in plain, unobstructed view of the field and community center. Given the use of the Fire Department field by the community as a place of recreation for children and adults, and given the proposed establishment’s location immediately adjacent to that field, I find that the operation of a bar or tavern, selling beer and wine for on-premises consumption, at the proposed location would not be conducive to the general welfare of the Long Creek community.

It should be noted that the proposed location is not necessarily unsuitable for other operations that involve the sale of alcoholic beverages. For example, a convenience store selling beer and wine for off-premises consumption, or even a bona-fide restaurant serving beer and wine with its meals, would not likely disrupt the character of the surrounding community and might appropriately be permitted for operation at the proposed location. However, an establishment focused primarily, if not exclusively, on providing alcoholic beverages for on-premises consumption, such as the bar or tavern proposed here, would not be in keeping with the uses to which the neighboring community field and buildings have been put, and should not be permitted for operation at the proposed location. In short, the proposed location is not suitable for the issuance of an on-premises beer and wine permit for the operation of a bar or tavern adjacent to a community recreational field and community center.

10.In reaching this finding, this tribunal does not impugn Petitioner’s character or question the sincerity of her intent to operate a clean, quiet, and orderly tavern in a manner that does not negatively impact the local community. Moreover, this tribunal recognizes that Petitioner has invested a significant amount of time and money in attempting to secure the requested permit. Nevertheless, the location selected by Petitioner for her proposed establishment is not suitable for the issuance of an on-premises beer and wine permit for the operation of a tavern, even if well-run. The activities associated with the operation of a bar are simply inconsistent with, and would have a detrimental effect upon, the activities occurring at the neighboring community facilities.

11.As the trier of fact, the issuance or denial of a permit rests within the sound discretion of this tribunal. Inherent in the power to issue a permit or license is also the power to refuse it. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 191 (1972). Refusal of the permit in the instant case is compelled because the proximity of the proposed location to a community recreational field and community center has rendered the location unsuitable for the requested permit.

ORDER

Based upon the Findings of Fact and Conclusions of Law stated above,

IT IS HEREBY ORDERED that Petitioner’s application for an on-premises beer and wine permit for the premises located at 12441 Long Creek Highway, Long Creek, South Carolina, is DENIED.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

July 7, 2003

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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