SC Administrative Law Court Decisions

Betty J. Thurmond (Thurmond) filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer and wine permit for 303 Charleston Street, Aiken, South Carolina. Protests were filed by Reverend Gehazel Williams and Ms. Viola Williams seeking to prevent DOR from granting the application. Jurisdiction vests in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 2000), 1-23-600(B) (Supp. 2000) and 1-23-310 (Supp. 2000).

In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. Rather, the only factor in dispute is whether the location is proper. The evidence and relevant factors require denying the off-premises beer and wine permit.

Does Thurmond meet the requirements for an off-premises beer and wine permit in light of an allegation that the location is improper?

1. Positions of Parties

Thurmond 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 January 23, 2001, Thurmond filed an application with the Department of Revenue for an off-premises beer and wine permit. The application is identified by DOR as AI# 3202-4177-9.

As a result of the application, the location was investigated by SLED with the SLED agent drawing a map generally depicting the immediate area of the proposed location. Following the notices posted by SLED and by the applicant, Reverend Gehazel Williams and Ms. Viola Williams challenged the application and presented this controversy. The hearing for this dispute was held May 29, 2001, 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 303 Charleston Street, Aiken, South Carolina. The business is a convenience store with operating hours of 7:00 a.m. until 10:00 p.m., Monday through Saturday. While the business will provide seating for five and will prepare and sell short-order foods on the premises, the operation seeks an off-premises beer and wine permit.

B. Specific Facts of Location

1. Statutory Proximity Factors: Church, Residences, and Playground

St. Noah Church of God, visible from the proposed location, sits at a distance of 245 feet from the proposed location. During the prior operation of the location by former owners, empty beer containers have been left on church grounds and loitering on church property has been a problem. In fact, intoxicated individuals have interrupted church functions. The church holds activities for the neighborhood at various times of the week and has held functions in a nearby park on Saturdays.

The nearby park is a playground on Charleston Street operated by the City of Aiken. The playground is approximately 320 feet from the proposed location and consists of playground equipment for young children and a basketball court utilized by teenage children. While fenced on all four sides, the playground is visible from the proposed location.

Children who use the playground live in the surrounding residential area with the overall area being predominately residential in nature. Indeed, the only other business in the area is a self-service laundromat. Such an establishment is more consistent with residential living than with creating a commercial atmosphere.

Further, a significant number of residences are in the immediate area. Nine residences are on the same block as the proposed location and at least five residences are across the street on Charleston Street. At least seven more residences are behind the proposed location on Berkley Street. In addition, the residential nature of the area will be enhanced in the near future since the area is scheduled to be renovated by the removal of "project housing" and the establishment of private homes.

2. Other Factors

The area currently has no establishment selling beer or wine. In fact, the closest establishment is a BP gas station on a major highway (Highway 78) in a commercial area half a mile away. However, beer and wine has been sold in the past.

Indeed, the proposed location has operated before with a beer and wine permit. At least since 1980 the location has sold beer and wine with an off-premises permit. However, the business closed at least six months ago and no beer and wine has been present in the community since then.

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

Under S.C. Code Ann. § 61-4-520 (Supp. 2000), no beer and wine permit may be granted unless the location of the place of business is a proper location. The proposed location in this case is not within a proper location since it is too close to protected institutions and granting the permit will negatively alter the current character of the neighborhood.

1. Location Factors: Forbidden Proximities

The proximity of the location to a church, a playground, or residences 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 alone 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 combination of a church, a playground, and numerous residences all within a close proximity make the proposed location an improper one. St. Noah Church of God is visible from the proposed location and is at a distance of 245 feet from the proposed location. A playground on Charleston Street that caters to both young children and teenagers is operated by the City of Aiken and is 320 feet from the proposed location. Finally, the proposed location is virtually surrounded by residences. Nine residences are on the same block as the proposed location, at least five additional residences are across the street on Charleston Street, and at least seven more residences are behind the proposed location on Berkley Street. In addition, the residential nature of the area will be further enhanced in the near future since the area is scheduled to be renovated by the removal of "project housing" and the establishment of private homes.

2. Location Factors: Other

While the proximity to a church, a playground, and residences requires denial, additional factors weigh in favor of denial as well. 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); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

Here, the impact on the community warrants denying the permit. For example, a valid consideration is whether other similar businesses selling beer and wine or alcohol already exist within the immediate area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, if granted, this permit would be the first introduced into the neighborhood. Thus, such a change would negatively impact the character of the area and would detrimentally change the character of the area. Such a change in character warrants a denial.

In considering other factors, certainly a relevant factor is 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, the location has been operated with a beer and wine permit from at least 1980. However, during former times, the church experienced problems which were contributed to by the presence of beer in this residential neighborhood. Thus, the location's past does not weigh in favor of granting a new permit at the location.

Finally, 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, obviously, the area is not commercial and thus the lack of such activity weighs against granting the permit.

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, a church, and a playground. Further, other location factors do not weight in favor of the permit. S.C. Code Ann. § 61-4-520 (Supp. 2000). Accordingly, Thurmond's application seeks a beer and wine permit for a location that is not a proper location.

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

DOR is directed to deny Betty J. Thurmond's application for an off-premises beer and wine permit at 303 Charleston Street, Aiken, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: June 1, 2001

Columbia, South Carolina