ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Dorothy L. Truitt (Truitt) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises
beer and wine permit and a minibottle license for Highway 363 and Luray Road, Hampton, South Carolina. A protest was
filed by David Wilson Drawdy seeking to prevent DOR from granting the application. After considering all of the factors
relevant to this application, the permit and license are granted, but only if restrictions are imposed.
II. Requirements Identified
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. 1999). 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. 1999). 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. 1999). Likewise, the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1999).
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. 1999). Finally, the applicant does not owe the state or federal government delinquent
taxes, penalties, or interest. S.C. Code Ann. § 61-2-160 (Supp. 1999). Rather, the granting or denying of the beer and wine
permit turns upon the disputed matter of whether Truitt meets the requirements of the location being proper. S.C. Code
Ann. § 61-4-520(6) (Supp. 1999).
A similar situation exists for the minibottle license; i.e., not all of the requirements for the license are challenged. For
example, no dispute exists on whether the applicant is a bona fide nonprofit organization (S.C. Code Ann. § 61-6-1820(1)
(Supp. 1999)); whether the applicant is of good moral character (S.C. Code Ann. § 61-6-1820(2) (Supp. 1999) and is of
good repute (S.C. Code Ann. § 61-6-110(3) (Supp. 1999)); whether the proposed location is within a prohibited distance to
a church, school, or playground (S.C. Code Ann. § 61-6-1820(3) (Supp. 1999)); whether notice has been given by
newspaper advertising and by posting signs (S.C. Code Ann. § 61-6-1820(4) and (5) (Supp. 1999)); whether the applicant is
at least twenty-one (S.C. Code Ann. § 61-6-1820(6) (Supp. 1999) and (S.C. Code Ann. § 61-6-110(1) (Supp. 1999));
whether the applicant is a legal resident (S.C. Code Ann. § 61-6-1820(6) (Supp. 1999) and (S.C. Code Ann. § 61-6-110(2)
(Supp. 1999)); whether the applicant has been convicted of a felony within ten years of the application (S.C. Code Ann. §
61-6-1820(81) (Supp. 1999); or whether the applicant has had an alcohol license revoked within five years of the application
(S.C. Code Ann. § 61-6-110(4) (Supp. 1999).
Rather, just as with the beer and wine permit, the dispute over the minibottle license is whether the location is suitable.
Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if specific statutory distance criteria
are not violated, a minibottle license is properly granted only if the location to be utilized is a suitable location).
Accordingly, the issue remaining for decision is whether the beer and wine permit and the minibottle license will be
employed at a proper location.
III. Issue
Does Truitt meet the requirements for an on-premises beer and wine permit and a minibottle license in light of an allegation
that the location is improper?
IV. Analysis
1. Positions of Parties
Truitt asserts she meets the location requirements. DOR did not grant the permit and license but states it awaits the
outcome of this hearing. The protestant asserts the permit and the license 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 November 18, 1999, Truitt filed an application with DOR for an on-premises beer and wine permit and a
minibottle license. The application is identified by DOR as AI # 32020377.
Truitt has operated a private club before. Her history as a club manager demonstrates she is capable of controlling activities
at a private club. The prior club operated by Truitt had no violations.
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, David Wilson Drawdy challenged the
application and presented this controversy. The hearing for this dispute was held Monday, June 12, 2000, 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 and the minibottle license will be utilized) is beyond
the city limits of Hampton and is located at Highway 363 and Luray Road, Hampton, South Carolina. The business is a
private night club with opening hours of 3:00 p.m. seven days a week. Closing hours are 12:00 midnight Monday, Tuesday,
Wednesday, and Sunday, but 2:00 a.m. Thursday, Friday, and Saturday. Live music is provided Friday and Saturday nights.
B. Specific Facts of Location
1. Statutory Proximity Factors
While no church, school, or playground is within five hundred feet of the proposed business, twenty-one residences (one of
which is currently vacant) are in the vicinity. Of those twenty-one, only one residence is immediately adjacent to the
location. As to that residence, the corner of the building constituting the residence is approximately sixty feet from the
property line of the proposed location. However, the property line separating the residence and the proposed business is
heavily wooded with trees and other vegetation. In fact the proposed location is in a wooded area with trees on three sides
and a highway on the front. Beyond the highway are more trees. No houses are immediately across the road from the
proposed location, but, beyond the immediate vicinity, residences are across the road at distances of over 250 feet.
2. Other Factors
The need for law enforcement involvement in the area is low. The evidence contains no incident reports depicting criminal
activity in the area and in particular no persuasive evidence of drug activity. In addition, Highway 363 provides an adequate
traffic route for the proposed location. Further, ingress and egress do not present a traffic hazard, and parking space is
sufficient for the needs of the patrons. Finally, the area does not have an extensive presence of children.
The location has been operated as a private club in the recent past. From 1997 to 1999, the proposed location was
previously operated as B.J's. During the prior operation, former management was charged with selling liquor to a non-member and selling to an individual under twenty-one. Additionally, during that time period, problems associated with noise
and litter occurred.
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. Law Enforcement
A proper consideration for reviewing a beer and wine permit and a minibottle license is examining the impact granting the
permit will have upon law enforcement. For example, 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). Also pertinent is 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). In all events, consideration should be given to the need for likely police intervention.
Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975).
Here, the evidence does not support a showing that police intervention is a likely result of granting the permit and license.
The area is generally free from criminal activity and the management of the proposed location is well aware of the duty to
maintain order. Truitt has operated a private club before. Her history as a club manage demonstrates that she is capable of
controlling activities at a private club. The prior club operated by Truitt had no violations during her management.
Further, the evidence contains no incident reports depicting criminal activity in the area and in particular no persuasive
evidence of drug activity. In addition, Highway 363 provides an adequate traffic route for the proposed location. Further,
ingress and egress from the front road entrance do not present a traffic hazard, and parking space is sufficient for the needs
of the patrons.
The extent to which children are or are not in the area of the proposed location is a valid consideration. Smith v. Pratt, 258
S.C. 504, 189 S.E.2d 301 (1972). Here, no evidence establishes an extensive presence of children.
2. Proximity
Under S.C. Code Ann. § 61-4-520 (Supp. 1999), no beer and wine permit may be granted unless the location of the place of
business is a proper location. More particularly, for a beer and wine permit, the proximity of the location to residences,
churches, schools, and playgrounds must be considered. 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). Similarly, for the minibottle license here
under consideration, the location must not be within 500 feet of a church, school, or playground and, in addition, the
location must be suitable. S.C. Code Ann. § 61-6-1820(3) (Supp. 1999); Schudel v. South Carolina ABC Comm'n, 276
S.C. 138, 276 S.E.2d 308 (1981).
In this case, the proposed location is not within a forbidden proximity to residences, churches, schools, and playgrounds and
in particular is not within 500 feet of a church, school, or playground. Rather than precise distances, the issue for both the
permit and the license is whether the proposed location is a proper and suitable location.
Here, while a residence is very close by, the proposed location is separated from all residences by a wooded area with trees
on three sides and with trees across the road. Houses that are across the road from the proposed location are at distances of
approximately 250 feet and all residences are separated from the proposed location by woods and other vegetation.
Accordingly, the area presents residences near the proposed location. Under such circumstances, restrictions are required to
ensure the proposed location is compatible with the surrounding area.
Restrictions are valid considerations since permission to hold a beer and wine permit or a minibottle license is the granting of
a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26
S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions.
S.C. Code Ann. § 61-2-80 (Supp. 1999); 23 S.C. Code Regs. 7-88 (1976).
In this case, the overall character of the area cannot be ignored. Here, the area lacks any commercial establishments and is
essentially rural with a residence next door and other residences scattered throughout the area. Under such circumstances
the presence of an on-premises beer and wine permit and minibottle license requires accommodations to achieve
compatibility with the area. Indeed, without such accommodations, a location's noise and the creation of inconvenience to
nearby residents can result in the proposed location being improper. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335, 336
(1985). Such accommodation is even more necessary given the presence of live music provided at the location and the
history of prior operators creating excessive noise.
Accordingly, in this case, no permit and no license may be issued unless Truitt enters an agreement with DOR imposing the
following restrictions on both the permit and the license:
- No audio equipment of any kind shall be located on or beyond the exterior of the building.
- No entertainment or performances of any kind shall be allowed at the location except in the interior of the building.
- The location must be sound proofed so that at no time will any sound emanating from any point in the interior of the
building be audible to the normal human ear at a distance of 75 feet in any direction from any exterior wall of the
building.
4. A single violation of any of these restrictions shall be a valid ground for DOR to revoke both the beer and wine permit
and the minibottle license.
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. Only with the restrictions identified above, the proposed location is a proper and suitable location.
Accordingly, Truitt's application seeks an on-premises beer and wine permit and sale and consumption (minibottle) license
for a location that is a proper location when restricted as required by this order.
V. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR is ordered to grant Dorothy L. Truitt's application for an on-premises beer and wine permit and sale and consumption
(minibottle) license at Highway 363 and Luray Road, Hampton, South Carolina only upon Truitt and DOR imposing the
following restrictions upon both the beer and wine permit and the minibottle license:
- No audio equipment of any kind shall be located on or beyond the exterior of the building.
- No entertainment or performances of any kind shall be allowed at the location except in the interior of the building.
- The location must be sound proofed so that at no time will any sound emanating from any point in the interior of the
building be audible to the normal human ear at a distance of 75 feet in any direction from any exterior wall of the
building.
4. A single violation of any of these restrictions shall be a valid ground for revocation of both the beer and wine permit and
the minibottle license.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: July 26, 2000
Columbia, South Carolina |
