SC Administrative Law Court Decisions

Melanie Wright (Wright) filed with the South Carolina Department of Revenue (DOR), an application for an on-premise beer and wine permit and a mini-bottle license for use at a private club at 2240 Claremont Road, Sumter, South Carolina. A protest was filed by Sumter County Sheriff, Tommy R. Mims, who seeks to have the application denied. Several additional protestants appeared at the hearing to testify against the application. Having heard the evidence and having reviewed the relevant factors, the on-premise beer and wine permit and the minibottle license must be denied.

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).

In this case, the granting or denying of the beer and wine permit turns upon the disputed matter of whether Wright 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 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).

Thus, just as with the beer and wine permit, the dispute 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).

Accordingly, the issue for decision is whether the beer and wine permit and the minibottle license will be employed at a proper location.

1. Positions of Parties

Wright asserts she meets the statutory requirements and DOR states it would have granted the permit but for the filing of protests asserting the location is improper. 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 February 28, 2000, Wright filed an application with the Department of Revenue for an on-premise beer and wine permit and a minibottle license. The application is identified by DOR as AI # 32021150-6. 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, Sheriff Tommy R. Mims challenged the application. The hearing for this dispute was held Tuesday, August 15, 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 2240 Claremont Road, Sumter, SC. The business is a private club with business hours of 6:00 p.m. until 2:00 a.m. Monday through Saturday and 2:00 p.m. until 10:00 p.m. on Sunday. The operation will provide 50 parking spaces and plans to provide live music as entertainment.

B. Specific Facts of Location

1. Statutory Proximity Factors

In this case, for minibottle purposes, the proposed location is not within 500 feet of a church, school or playground, and for beer and wine purposes, no churches, schools, or playgrounds are in the immediate area.

However, several residences are in the area with those residences housing several children. The nearest residence is 310 feet from the proposed location and approximately seven other residences are in the immediate area at distances greater than 310 feet. A party at the proposed location on July 4, 2000 resulted in residents presenting testimony of excessive noise.

2. Other Factors

While traffic safety is not a major issue given the access route of Claremont Road, law enforcement is significantly impacted by the proposed application. The proposed location is on the edge of Sumter County with the closest responding sheriff's substation between seven and ten miles away. The substation is not manned twenty-four hours a day in that no coverage is provided after midnight.

Further, when the proposed location was operated in the past, complaints of drug activity were received by the sheriff's office and required response and investigation. While currently the location is closed, and while currently no drug activity is occurring in the immediate area, the sheriff's office receives drug complaints from areas surrounding the location within a distance of four miles.

The area is decidedly rural in nature with extensive fields and woodlands near the proposed location. In fact, no commercial establishments and no other beer or wine permits or minibottle licenses are in the immediate area. While in the past a permit and license have been utilized at the proposed location from 1993 to 1997, the location has been closed since 1997 and no alcohol has been sold in the area. Indeed, granting the permit and license now will present the only introduction of alcohol to the immediate area.

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 significant enough to deny the beer and wine permit. The negative impact is established by at least four different factors and those factors require denying the permit and license.

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 establishes a substantial concern for law enforcement activities in the immediate area.

The proposed location is on the edge of Sumter County and gives a significant distance from police headquarters. The closest responding sheriff's substation is between seven and ten miles away and even then the substation is not manned twenty-four hours a day; i.e., no coverage is provided after midnight. In addition, when formerly operated, complaints of drug activity were received by the sheriff's office and required response and investigation. Finally, while currently no drug activity is occurring in the immediate area, the sheriff's office receives drug complaints from areas surrounding the location within a distance of four miles. Thus, the impact upon law enforcement is a valid basis for denying the permit.

A second negative factor is the degree to which the area is characterized as rural versus commercial in nature. 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 decidedly rural in nature, lacking in any commercial activity. The lack of commercial activity is a negative factor in evaluating the current application.

Further, a third negative factor is whether other beer and wine permits or minibottle licenses are already in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801(1973) Here, no other beer or wine permit or minibottle license are in the immediate area. While in the past a permit and license have been utilized at the proposed location, granting the permit and license now will present the only introduction of alcohol to the immediate area. Indeed, the proposed location was previously operated with a beer and wine permit and a minibottle license from 1993 to 1997. However, the location has been closed since 1997 and no alcohol has been sold in the area since then.

In evaluating the third negative factor in this case, due consideration has been given to 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). In this case, while beer and wine and minibottles have been sold in the recent past at this same location, the evidence does not confirm that the location was an ideal one for such sales. Rather, the most persuasive testimony from police and residents establish that the former location was a source of complaints. Thus, in this case, the former operation is not a valid means for establishing that the current application should be granted.

Finally, the proximity to residences 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). Here, the location has already presented a problem for residences due to parties at the location generating excessive noise. Thus, the impact on neighboring residences is also a negative factor.

Accordingly, under all of the facts of this case, the beer and wine permit cannot be granted since the location is not a proper location.

2. Location Factors: Minibottle License

The location factors for a minibottle license requires two separate inquiries, the first objective and the second subjective.

The objective inquiry asks if the minibottle license will be utilized within 500 feet of a church, school, or playground outside of a municipality. S.C. Code Ann. § 61-6-120(A) (Supp. 1999). Here, the answer is "no" since no church, school, or playground is within the prohibited distance. Thus, the objective test is satisfied.

However, here, the subjective inquiry is not met. 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 not proper for a beer and wine permit also establish the location is not proper for a minibottle license. The negative impact upon law enforcement is significant, the area is highly rural with only residences nearby, no other liquor licenses are in the area, and past operations of the location suggest the existence of complaints will continue for any new operation. Thus, considering all of the relevant factors, the subjective inquiry is not satisfied and the minibottle license must be denied.

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 a proper one for either a beer and wine permit or for a minibottle license.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

DOR is ordered to deny Melanie Wright's application for an on-premise beer and wine permit and a minibottle license at 2240 Claremont Road, Sumter, SC.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: September 11, 2000

Columbia, South Carolina