ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Michelle A. Evans (Evans) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and
wine permit and a consumption (minibottle) license for 421 Broad Street, Sumter, South Carolina. The City of Sumter and Calvary
Baptist Church intervened and several protestants appeared at the hearing. The intervenors and the protestants seek to prevent DOR
from granting the application.
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 Evans 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 conducts a business bona fide engaged primarily and substantially in the preparation and
serving of meals (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 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, a dispute in this matter is whether the location is suitable for a minibottle permit.
Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if specific statutory distance criteria are
satisfied, a minibottle license is properly granted only if the location is a suitable location). Further, a second dispute is whether the
proposed location is within a prohibited distance of 300 feet from a church. S.C. Code Ann. § 61-6-1820(3) (Supp. 1999).
III. Issue
Accordingly, the issues for decision are whether the beer and wine permit and the minibottle license will be employed at a proper
location and whether a church is within 300 feet of the proposed location.
IV. Analysis
1. Positions of Parties
Evans asserts she meets the location requirements. DOR did not grant the permit and license but states it awaits the outcome of this
hearing. The intervenors and protestants assert the permit and the license should be denied since the location is not suitable and the
distance to the church is less than 300 feet.
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 11, 1999 Evans filed an application with the Department of Revenue for an on-premises beer and wine permit
and a consumption (minibottle) license. At the time of the application, the proposed location was not operating with a beer and wine
permit or with a minibottle license. The application is identified by DOR as AI# 32020303-4.
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, Martha McElveen Horne, Esq. Dale B.
Newton Rev. Kevin D. Smith William J. Elliot Wayne & Gertrude Morris, Bobby & Travis Mims, John M. Burress, Jr. and Dana R.
Carpenter challenged the application, giving rise to this controversy. The hearing for this dispute was held Thursday, July 6, 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 permit and license will be utilized) is located at 421 Broad Street, Sumter, South
Carolina and will provide parking for approximately 30 parking spaces. The business is a bar and grill restaurant with business hours
of 11:00 a.m. until 1:00 a.m. Monday through Thursday and 11:00 a.m. until 12 midnight on Friday and Saturday.
B. Specific Facts of Location
1. Statutory Proximity Factors
Calvary Bible Church has its parking grounds on Carolina Avenue. The distance from the front door of the proposed location on
Broad Street via Carolina Avenue to the corner of the church's parking lot on Carolina Avenue is at most 291 feet. (Pet. Ex. 1, page I
of SLED Agent's Report). Further, the parking lot on Carolina Avenue is less than 200 feet from the rear of the proposed location.
In particular, when measured "as the crow flies" the distance from the church building to the building of the proposed location is 253
feet.
A SLED Agent's report asserts the distance from the proposed location to Calvary Baptist Church is 398 feet when that distance is
measured consistent with statutory requirements.
2. Other Factors
This case does not establish a substantial concern for law enforcement activities in the immediate area. No police records establish a
significant problem with crime at or near 421 Broad Street, Sumter, South Carolina and no records of law enforcement officials show
a significant degree of criminal activity. Further, as for drug activity, no law enforcement records show incidents involving drugs at
the location.
Likewise, traffic safety is not a major issue. Broad Street and Carolina Avenue provide adequate traffic routes for the proposed
location. Sufficient parking is provided along with proper ingress and egress to the proposed location.
The proposed location is in an area that is primarily commercial in nature. The area is home to Newton's Greenhouse & Florist across
the street from proposed location. Sumter Carpet & Tile, Gold Rush, Jolly's, and a plasma center are all within a close proximity.
Consistent with this commercial nature, overall, the area does not exhibit the presence of children in any significant degree.
Not only is the area commercial but also the proposed location will not be the first introduction of alcohol in the immediate area.
Within a quarter of a mile, an establishment known as Our Place holds a license. Directly across the street at a distance of
approximately 100 feet, K.J.'s Bar & Grill has an on-premises beer and wine permit. Similarly, a near-by location known as Pizza
Lane holds a beer and wine permit. Additionally, Big Jim's Restaurant is three blocks away and holds an alcohol license.
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: Beer and Wine Permit
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 determining the suitability of a location, 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). Here, the impact upon the community is not so significant as to
warrant denying the beer and wine permit.
For example, a proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon
law enforcement. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992); Roche v. S.C.
Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). This matter does not establish a substantial concern for
law enforcement activities in the immediate area since no police records establish a significant problem with crime at or near the
proposed location. Further, no records of law enforcement officials show incidents involving drugs at the location.
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). Here, traffic safety is
not a major issue since Broad Street and Carolina Avenue provide adequate traffic routes for the proposed location. Further, adequate
parking is provided along with proper ingress and egress to the proposed location.
The degree to which the area is characterized as rural or commercial is relevant. Palmer v. S.C. Alcoholic Beverage Control
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, the area is primarily commercial in nature. For example, Newton's
Greenhouse & Florist is across the street from proposed location and Sumter Carpet & Tile, Gold Rush, Jolly's, and a plasma center
are all within a close proximity. Such a commercial presence is a factor in favor of granting the permit.
A relevant factor is whether other beer and wine permits are already in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d
801(1973) Here, within a quarter of a mile, an establishment known as Our Place holds a license. Directly across the street at a
distance of approximately 100 feet, K.J.'s Bar & Grill has an on-premises beer and wine permit. Similarly, a near-by location known
as Pizza Lane holds a beer and wine permit. Additionally, Big Jim's Restaurant is three blocks away and holds an alcohol license.
Finally, consideration must be given to the proximity of the location to churches in the area. 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 is a basis for denying a beer and wine permit. Id.
Given the general commercial nature of the area, the location in relation to Calvary Bible Church is not so close as to warrant denying
the beer and wine permit. The applicant here will operate a business as a restaurant and will not operate as a private club. Further, no
interference with normal Sunday worship services is likely since the location will be closed on Sundays. Further, other similar
establishes are in the area and have not demonstrated an incompatibility with the church. Thus, when all factors are considered, the
proposed location is not within an improper proximity to Calvary Bible Church.
2. Location Factors: Minibottle License
The location factors for a minibottle license requires two separate inquiries, the first subjective and the second objective.
The subjective inquiry is virtually identical to that of the beer and wine permit; i.e., the location must be suitable. Schudel v. South
Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Under the facts of this case, the same factors that demonstrate the
location is proper for a beer and wine permit also establish the location is proper for a minibottle license. For example, traffic safety
is not impacted, the area is highly commercial, other liquor licenses and beer and wine permits are in the area, and no demonstration
exists that law enforcement will be unable to handle the location. Thus, no subjective reason exists to deny the minibottle license.
However, notwithstanding satisfying the subjective test, an objective test must also be met. In short, no minibottle license may be
permitted within 300 feet of a church. S.C. Code Ann. § 61-6-120(A). The pertinent language explains that:
[no minibottle license shall be granted] if the place of business is within three hundred feet of any church . . . situated within a
municipality . . . . Such distance shall be computed by following the shortest route of ordinary pedestrian or vehicular travel along the
public thoroughfare from the nearest point of the grounds in use as part of such church . . . .
While one terminus for the measurement is easily identified as the entrance door to the proposed location since such a door provides
the means for finding the "shortest route of ordinary pedestrian" travel, the second terminus requires a more difficult measurement
based upon finding the "nearest point of the grounds in use as part of such church."
In finding this second terminus, the phrase "nearest point of the grounds in use" is further defined by Regs. 7-55 as being :
the nearest point of entrance to the grounds of the church . . . , or any building in which religious services . . . are held, whichever is
the closer. . . .
Thus, two points are possible for establishing the "nearest point of the grounds in use as part of such church." First the "grounds"
point is the nearest point of entrance to the grounds. Second, the "building" point is the nearest point of entrance to any building in
which religious services are held. Once both points are identified, the "closer" of the two must be used.
In addition, in locating the "grounds" point, the grounds being considered are:
restricted to the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or
buildings and does not extend to the grounds surrounding the church which may be used for beautification, cemeteries, or any purpose
other than such part of the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings. Only
one entrance to the grounds of a church . . . shall be considered, to wit: the entrance to the grounds nearest an entrance to the church
or school building. Where no fence is involved, the nearest entrance to the grounds shall be in a straight line from the public
thoroughfare to the nearest door.
In the instant case, no definitive measurements establish either the "grounds" point or the "building" point. At most, unsubstantiated
measurements dominate the evidence.
On one hand, a report of a non-present SLED Agent asserts the statutory distance is satisfied since the measurement to the church is
398 feet. However, the agent did not testify at the hearing. Further, no meaningful explanation is given of what land features, if any,
he utilized to determine the "grounds" point and no explanation is given of whether a different measurement was taken for the
"buildings" point. Thus, the means for establishing the second terminus point by the SLED Agent is too unsupported for a
meaningful decision.
Similarly, on the other hand, the appraiser who testified for the City of Sumter summarily stated he made his measurement consistent
with the statute. Given the intricacies of the statute and regulation, persuasive testimony requires more than a mere statement of
compliance with the statute.
When facts are disputed, as they are here, the judge as the fact-finder must weigh the evidence presented and evaluate the credibility
of the witnesses. See Doe v. Doe, 324 S.C. 492, 478 S.E.2d 854 (Ct. App. 1996); Rogers v. Kunja Knitting Mills, Inc., 312 S.C. 377,
440 S.E.2d 401 (Ct. App. 1994), cert. dismissed, 318 S.C. 187, 456 S.E.2d 918 (1995). Moreover, even if the evidence were
uncontradicted, the trial judge is not required to accept the evidence if the evidence is unconvincing. All v. Prillaman, 200 S.C. 279,
20 S.E.2d 741 (1942). Here, the evidence of the distance to the second terminus is simply unconvincing from all points of view.
V. Order
Accordingly, the following Order is entered:
- DOR shall issue the requested beer and wine permit with such permit effective on the fifth day following the date of this Order.
- As to the minibottle license, this matter shall remain open for the sole purpose, and no others, of receiving evidence on the linear
distance from the proposed location to Calvary Bible Church.
- By September 13, 2000, DOR and SLED are directed to re-measure the distance to Calvary Bible Church with such measurement
to be taken consistent with the applicable statute and regulations.
- DOR and SLED shall mail a copy of its measurement determination to all parties by September 15, 2000.
- At 11:00 a.m., Monday, September 25, the continuation of this hearing shall begin and DOR shall present the measuring SLED
Agent for testimony and cross examination.
- The SLED Agent's testimony must establish the distance from the proposed location to Calvary Bible Church and must establish
the specific methodology used in making that measurement.
AND IT IS SO ORDERED
____________________________
RAY N. STEVENS
Administrative Law Judge
This 7th day of September 2000
Columbia, South Carolina |
