ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Thelma Tucker (Tucker) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises
beer and wine permit for 5175 Blackriver Road, Dalzell, South Carolina. Protests were filed by Earl J. Gerard and Juanita
Gerard, Corine Yates-Grant, and Rev. R. Edwin Bennett 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. 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 permit turns upon the disputed matter of whether Tucker meets the requirement of the
location being proper.
Since the permit is challenged, 23 S.C. Code Ann. Regs. 7-90 (Supp. 1999) requires a hearing with jurisdiction in the
Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 1999), 1-23-600(B) (Supp. 1999)
and 1-23-310 et seq. (Supp. 1999). The evidence and relevant factors require denying the on-premises beer and wine permit.
II. Issue
Does Tucker 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
Tucker 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. 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 December 8, 1999, Tucker filed an application with the Department of Revenue for an on-premises beer and
wine permit. The application is identified by DOR as AI # 32020518-5. 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, Earl J. Gerard and Juanita Gerard, Corine Yates-Grant, and Rev. R. Edwin
Bennett challenged the application and presented this controversy. The hearing for this dispute was held Monday, June 19,
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 5175 Blackriver Road,
Dalzell, South Carolina. The business is a lounge with business hours of 4:00 p.m. until 2:00 a.m. Monday through Friday;
4:00 p.m. until midnight on Saturday, and closed on Sunday. The operation will provide seating for approximately twenty
people and has approximately twenty-five parking spaces. No plans exist for live music, but a juke box will be provided.
B. Specific Facts of Location
1. Statutory Proximity Factors
The area is an identifiable community consisting of a local church and surrounding residences. Grant Hill Baptist Church is
approximately one-fourth of a mile from the location and is located on the same side of the highway as is the location. The
closest residence to the location is less than 100 feet away. In the immediate area, when facing the location, four residences
are to the left and six are to the right. Approximately one-fourth of a mile from the location is a mobile home park with six
additional residences. Considering the overall nature of the area in which the beer and wine permit will be used, the area is
primarily a residential area.
2. Other Factors
The area is rural and has no commercial businesses in the immediate area. Further, no beer and wine permits or alcohol
licenses are in the immediate area. Rather, the nearest beer and wine permits are at locations three and four miles away.
Indeed, even as to those locations, law enforcement has been called to investigate disturbances, and thus they exert a need
for law enforcement involvment.
The proposed location was previously operated as a grocery store from 1978 until 1997. During that period, no significant
problems were presented. However, beginning in 1997, and ending in 1999, the location was operated with an on-premises
beer and wine permit. During that time, residents complained of excess noise, profanity, loitering, and littering. Police
intervention was requested at least twice.
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. 1999), 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 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). 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).
2. Location Factors: Proximity
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, the location is within a proximity that is too close to residences in the area. One residence is less than 100 feet away
and, in the immediate area four residences are to the left and six are to the right. Further, one-fourth of a mile away is a
mobile home park with six additional residences. Considering the overall nature of the area in which the beer and wine permit
will be used, the area is primarily a residential area. Such close proximity is especially unacceptable given the presence of a
juke box that will present additional noise for a location that will be open until 2:00 a.m. Such a permit is incompatible with
a residential area when the location operates into the early morning hours typically associated with the hours of sleep normal
to a residential community.
3. Location Factors: Other
A relevant factor is whether the location is near other locations that have been either a source of law enforcement problems,
or are locations where young people congregate and loiter. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984). Here, two beer and wine permits are at locations three and four miles away. Both of
those locations have required law enforcement involvement due to a need to investigate disturbances. Thus, adding a new
location will exert a need for additional law enforcement involvement.
The degree to which the area is characterized as rural, is relevant. Palmer v. S.C. Alcoholic Beverage Control Comm'n,
282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Further, a valid consideration is whether the surrounding area is
substantially commercial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic
Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, the area is rural and has no commercial
activity. Thus, the rural nature and the lack of any other commercial activity weighs against granting the permit.
Finally, consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within
the area, 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, from 1997 until 1999, the location was operated with an on-premises beer and wine permit. During that time residents
complained of excess noise, profanity, loitering, and littering. As a result, police intervention occurred on at least two
occasions.
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 within an improper proximity to residences. Further, other location factors weigh
against granting the beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1999). Accordingly, Tucker'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 is ordered to deny Thelma Tucker's application for an on-premises beer and wine permit at 5175 Blackriver Road,
Dalzell, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: June 22, 2000
Columbia, South Carolina |
