SC Administrative Law Court Decisions

Shack, Inc. filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit and a mini-bottle, private club license for 1608 Easley Bridge Road, Greenville, South Carolina. The permit and license are to be held in the name of an individual, Bryan Boyd (Boyd). A protest was filed by Reverend M. Sharpe Powell, New Hope Baptist Church, seeking to prevent DOR from granting the application.

In this matter, not all of the requirements for obtaining a beer and wine permit and a minibottle license are disputed. ⁽¹⁾ Rather, the single dispute is whether the location is proper and suitable.

1. Positions of Parties

Boyd asserts he meets the statutory requirements. DOR states it would have granted the permit but for the filing of the protest asserting the location is improper. While DOR was excused from appearing at the hearing, the DOR case file is being received as a part of the evidence for consideration of the permit and license. Accordingly, after such evidence is considered, DOR awaits the outcome of this hearing. The protestant did not appear at the hearing, but, in a prior written communication found in the DOR case file, generally argues 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 16, 1999 Boyd filed an application with the Department of Revenue for an on-premise beer and wine permit and mini-bottle, private club license. The application is identified by DOR as AI # 32020430-0 and DOR No. 3751. 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, Reverend M. Sharpe Powell challenged the application. The hearing for this dispute was held Monday, August 7, 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 permit and license will be utilized) is located at 1608 Easley Bridge Road, Greenville, South Carolina. The business is a private club with business hours of 11:00 a.m. until 10:00 p.m. Monday through Wednesday; 11:00 a.m. until 2:00 a.m. Thursday through Saturday; and ll:00 a.m. until 9:00 p.m. on Sunday.

B. Specific Facts of Location

1. Proximity Factors

While New Hope Baptist Church is 373 feet from the proposed location, no schools are in the immediate area. Indeed, the area primarily consists of commercial establishments. For example, the vicinity contains Boomer Video, a radiator shop, a car dealership, dry cleaners, and a grocery store.

2. Other Factors

The area near 1608 Easley Bridge Road, Greenville, South Carolina has not been shown to be an area in need of law enforcement intervention. No records of law enforcement officials were presented to show incidents of crime occurring in and around the proposed location and no evidence shows incidents involving drugs at the location. Further, the transportation routes of Easley Bridge Road and North Texas Street provide adequate traffic patterns for the proposed location.

The area has other establishments that hold either a beer and wine permit or an alcohol license. For example, a location known as Wesley's is in the immediate vicinity. That location holds an on-premises beer and wine permit and a mini-bottle license. At least two off-premises beer and wine permits are nearby at a grocery store and a gas station.

Further, the proposed location was previously operated as Ember's Restaurant and Lounge from 1989 to 1999. During the prior operation, no citations were issued related to beer and wine and minibottles.

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 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. No evidence supports finding that the area is a problem for law enforcement. For example, the evidence contains no incident reports depicting criminal activity in the area and in particular no evidence of drug activity. In addition, Easley Bridge Road provides an adequate traffic route for the proposed location.

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. 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).

On the other hand, a minibottle license that will be located outside a municipality (as is the proposed location) must typically meet two proximity criteria. First, for locations outside of a municipality, the proposed location must not be within 500 feet of a church, school, or playground. Second, the proposed 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 500 foot limitation of S.C. Code Ann § 61-6-1820(3) is made inapplicable by § 61-6-120(A) (" . . . above [300 and 500 foot] restrictions . . . do not apply to new applications for locations which are licensed at the time the new application is filed with the department."). Here, Boyd filed a new application for a location that was licensed at the time the new application was filed.

However, the second limitation requiring that the proposed location must be suitable is applicable. Thus, the issue for both the permit and the license is whether the proposed location is a proper and suitable location.

Here, New Hope Baptist Church is not on the same block as the proposed location. Rather, the church is on the next block over and is also on the opposite side of the street. Further, no schools are in the immediate area and only scattered residences are nearby. Indeed, the area primarily consists of commercial establishments. For example, the vicinity contains Boomer Video, a radiator shop, a car dealership, dry cleaners, and a grocery store. Considering the overall nature of the area, the proposed location is not within an improper proximity to churches, schools, or residences in the area.

3. Other Locations and Prior History

Consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Further, a relevant factor is whether in the recent past beer and wine or alcohol 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. Id. Both the presence of other locations in the area and the prior history of the proposed location suggest the permit and license should be granted.

Here a location known as Wesley's is in the immediate vicinity. That location holds an on-premises beer and wine permit and a mini-bottle license. Further, at least two off-premises beer and wine permits are nearby at a grocery store and a gas station. Accordingly, the addition of an on-premises beer and wine permit and a mini-bottle, private club license at the proposed location will not adversely change the character of the area.

Likewise, the proposed location was previously operated as Ember's Restaurant and Lounge from 1989 to 1999. During the prior operation, no citations were issued related to beer and wine and minibottles. Thus, the past history demonstrates that the permit and license should be granted here.

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 a proper and suitable location. Accordingly, Boyd's application cannot be denied on the ground that the proposed location is not a proper location for an on-premises beer and wine permit and a sale and consumption (minibottle) license.

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

DOR is ordered to grant Bryan Boyd's application for an on-premise beer and wine permit and a mini-bottle, private club license at 1608 Easley Bridge Road, Greenville, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: August 8, 2000

Columbia, South Carolina

1. For the beer and wine permit, 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 and 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 Boyd meets the requirements of the location being proper.

Likewise as to the minibottle license, 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(A) (Supp. 1999) and (S.C. Code Ann. § 61-6-120(A)) since under the facts of this case the application relates to a location that was previously licensed; 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).