ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Olin F. Plyler, d/b/a Catawba Junction Bar, Grill and Video (Plyler) filed with the South Carolina Department of Revenue
(DOR), an application for an on-premises beer and wine permit for 4825 Cureton Ferry Road, Catawba, South Carolina.
Protests were filed by Karen Faris and Captain Doug Taylor of the York County Sheriff's Office seeking to prevent DOR
from granting the application.
In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. No dispute exists that the
applicant has good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 1998). Further, the applicant is a legal resident
of the United States and has been a legal resident of South Carolina for 30 days prior to filing the application and occupies
a principal place of abode in South Carolina. S.C. Code Ann. § 61-4-520(2) (Supp. 1998). In addition, the applicant has
not had a beer or wine permit revoked within two years of the date of the current application. S.C. Code Ann. § 61-4-520(4) (Supp. 1998). Likewise, the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp.
1998). Additionally, the applicant gave proper notice of the application by way of newspaper and the display of signs. S.C.
Code Ann. § 61-4-520(8) and (9) (Supp. 1998). Finally, the applicant does not owe the state or federal government
delinquent taxes, penalties, or interest. S.C. Code Ann. § 61-2-160 (Supp. 1998). Rather, the granting or denying of the
permit turns upon the disputed matter of whether Plyler meets the requirements of the location being proper.
Since the permit is challenged, 23 S.C. Code Ann. Regs. 7-90 (Supp. 1998) requires a hearing with jurisdiction in the
Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 1998), 1-23-600(B) (Supp. 1998)
and 1-23-310 (Supp. 1998). In this case the evidence and relevant factors require granting the on-premises beer and wine
permit
II. Issue
Does Plyler meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is
improper?
III. Analysis
Proper Location
1. Positions of Parties
Plyler asserts he meets the statutory requirements. DOR states it would have granted the permit but for the filing of the
protests asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. The protestants assert
the permit should be denied since the location is not suitable.
2. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
A. General Facts of Location
On or about August 5, 1999, Plyler filed an application with the Department of Revenue for an on-premises beer and wine
permit. The application is identified by DOR as AI# 32019748-9. 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, Karen Faris and Capt. Taylor challenged the application and presented this controversy. The
hearing for this dispute was held Thursday, April 3, 2000, 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 4825 Cureton Ferry
Road, Catawba, South Carolina. The business will operate as a restaurant serving breakfast from 5:30 a.m. until 10:00 a.m.
and lunch and supper from 10:00 a.m. until 9:00 p.m. The menu offers a wide variety of meals including hotdogs,
hamburgers, chicken, barbeque, shrimp, and flounder, along with a variety of salads and vegetables. The business carries an
"A" rating for health inspection purposes. The restaurant is open Monday through Saturday and provides seating for
approximately sixty people and parking spaces for twenty-five vehicles. No live music will be provided.
B. Specific Facts of Location
1. Statutory Proximity Factors
The nearest church to the proposed location is at a distance of approximately one-fourth of a mile. Given that the business
is closed on Sunday and does not provide live music, the proposed location's operation is not a hindrance to normal
worship services or other activities held by the church community. Further, no school is in the immediate vicinity since
Leslie Elementary is at least four miles from the business site. Accordingly, no activities of the location conflict with the
school.
2. Other Factors
Numerous other factors are relevant to granting or denying a beer and wine permit. Here, the most relevant are community
make-up, police coverage, traffic flow, and prior operation.
The community is predominately rural with a mixture of commercial businesses. For example, a vacant business is 270 feet
from the proposed location and the U.S. Post Office is 320 feet from proposed location. Otherwise the immediate area is
surrounded by woods.
Police coverage for the area near the proposed location is adequate for the level of demonstrated criminal activity in the
area. For example, no records of law enforcement officials show a pattern of crime either in the area as a whole or at the
specific location. The only evidence of crime is three incidents of gambling in 1995. However, those charges resulted from
a prior operator and not the actions of the applicant. Further, no evidence establishes any drug activity at the location.
Finally, additional plans call for a satellite Sheriff's office in Rock Hill approximately ten miles away.
Traffic flow is a relevant factor for this location. Cureton Ferry Road is the primary access route for the proposed location
and two rail lines are in close proximity to the proposed location. One rail line in entirely on the opposite side of the street
from the proposed location while the other rail line crosses Cureton Ferry Road. However, at that point the rail line has a
safety bar that blocks traffic flow across the highway during train crossings. Given the positions of the rail lines, the
entrance and exit from the location are not impeded.
Finally, the proposed location was previously operated by the applicant from 1977 until 1991. During that time no citations
were issued related to the beer and wine permit held by the applicant.
3. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
A. Law of Location Applied to Location Facts
1. Location Factors: General
Under S.C. Code Ann. § 61-4-520 (Supp. 1998), no beer and wine permit may be granted unless the location of the place
of business is a proper location. In general, consideration may be given to any factors that demonstrate the adverse impact
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). Geography alone is not the sole consideration of suitability, but rather any impact on the community must be
considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
Here, the impact on the community is not so great as to deny the permit. Indeed, a factor favoring granting the permit is
whether, absent the beer and wine permit, the establishment would be a commercial asset to the community. Smith v.
Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). Here, the business will operate as a restaurant in an area where a restaurant
is an asset to the community.
2. Location Factors: Proximity
The proximity of the location to churches or schools 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 a church or school 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).
In this case, no evidence establishes an improper proximity to a church or school. Rather, the closest school is four miles
away and the closest church is over a quarter mile away. No evidence establishes a likely interference with the activities of
either the church or the school from granting the permit requested.
3. 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. Consideration should be given to evidence that granting the permit will place a strain upon police to
adequately protect the community. 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, police coverage is adequate through the York
County Sheriff's Office given the lack of significant crime in the area. Indeed, no evidence of drug activity has been shown,
and plans call for a satellite office of the Sheriff in the Rock Hill area in the near future. Thus, lack of police coverage is not
a factor.
Certainly, 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). On the whole, the area is not a major source of traffic danger. While rail lines are present, a crossing bar provides a
safety factor and no material impediment restricts ingress and egress at the location.
A relevant factor is whether in the recent past beer and wine have been sold at the same location 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 same applicant operated the location with a beer and wine permit from 1977 to 1991.
Nothing in the evidence establishes that the location is any less suitable now than it was in 1977.
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. The proposed location is not within an improper proximity to schools and churches. Further, other location
factors do not present a basis for denying the beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1998).
Accordingly, Plyler'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 is ordered to grant Olin F. Plyler, d/b/a Catawba Junction Bar and Grill an on-premises beer and wine permit at 4825
Cureton Ferry Road, Catawba, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: April 10, 2000
Columbia, South Carolina |
