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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Action Enterprises of Anderson, L.L.C., d/b/a Action Food Mart vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Action Enterprises of Anderson, L.L.C., d/b/a Action Food Mart
1003 Pearyman Dairy Road, Anderson, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0284-CC

APPEARANCES:
Petitioner & Representative: Action Enterprises of Anderson, L.L.C., d/b/a Action Food Mart, 1003 Pearyman Dairy Road, Anderson, SC Kenneth E. Allen, Esquire

Respondent & Representative: South Carolina Department of Revenue Nicholas P. Sipe, Esquire

Parties Present: Petitioner present, Respondent excused, Protestant Rev. Neal present.
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case



Action Enterprises of Anderson, L.L.C. (by George T. Bikas) (Bikas) filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer and wine permit for 1003 Pearyman Dairy Road, Anderson, SC. Protests were filed by Pastor Dave Neal of the Harvest Baptist Church and H. Adair, Principal of Westside High School with both 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 sufficient good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 2000). 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. 2000). 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. 2000). Likewise, the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 2000). 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. 2000). Finally, the applicant does not owe the state or federal government delinquent taxes, penalties, or interest. S.C. Code Ann. § 61-2-160 (Supp. 2000). Rather, the granting or denying of the permit turns upon the disputed matter of whether the location is proper for an off-premises beer and wine permit.



Protests were filed pursuant to S.C. Code Ann. § 61-4-525 resulting in a contested case before 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, the evidence and relevant factors require granting the off-premises beer and wine permit.



II. Issue



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



III. Analysis



Location



1. Positions of Parties



Bikas asserts he 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 April 16, 2001 Bikas filed an application with the Department of Revenue for an off-premises beer and wine permit. The application is identified by DOR as AI # 3202-4967. 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, Pastor Dave Neal of Harvest Baptist Church and H. Adair, Principal of Westside High School, filed protests to the application. The hearing for this dispute was held Tuesday, August 28, 2001, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.



The location of the proposed business (and the place where the beer and wine permit will be utilized) is 1003 Pearyman Dairy Road, Anderson, SC. The business is a convenience store with business hours of Monday through Saturday, 6:00 a.m. until 10:00 p.m. and Sunday 8:00 a.m. until 10:00 p.m. The operation will not provide seating and will not provide live or recorded music.



B. Specific Facts of Location



1. Statutory Proximity Factors



Three churches and a high school are in the area. However, each is some distance from the proposed location. When measured by means of travel along the public thoroughfare, Harvest Baptist Church is at a distance of 1,340 feet, John Wesley Methodist Church is at a distance of 1,310 feet, and Westside High School is 1,297 feet from the proposed location. A third church and a middle school are at unspecified but further distances from the proposed location. Due to the tree line of the landscape and other buildings in the area, the churches are not clearly visible from the proposed location. However, at a distance of approximately 300 feet to the west of the proposed location's front door, at least one church is visible.



Here, no live music, recorded music, or other disruptive activity will be conducted. Instead, the activities at the proposed location will consist of retail sales of merchandise.



While four residences are in the immediate area, the closest is over 500 feet away. Further, the predominate characteristic of the proposed location is that of a commercial area, not a residential one. For example, Havoline Express Lube is across the street, Temco, Inc. is on the east side of proposed location and Eckerd Drugs is located across the street at the intersection of Centerville Road and Hwy 28 Bypass. In addition, other commercial establishments are in the surrounding area along the highly commercial highway of Hwy. 28 Bypass. Overall, the area is primarily commercial in nature and the proposed location will not present a disruptive activity incompatible with those residents living in the area.



2. Other Factors



The evidence does not establish a lack of proper police coverage and no evidence establishes crime or drug activity in the immediate area. Additionally, Pearyman Dairy Road (also noted as Hwy 28 Bypass) is a four-lane highway that provides an adequate traffic route for the proposed location.



Further, the overall area has several establishments that hold a beer and wine permit. A convenience store less than .5 of a mile away already holds a permit. In addition, less than two miles away two other convenience stores also hold permits. Accordingly, the addition of an off-premises beer and wine permit at the proposed location will not significantly change the character of the area.



Most significantly, the proposed location has previously operated with a beer and wine permit for thirty years. During that period no evidence exists that the permit has been a source of disruption to the surrounding area. Indeed, no violations of the beer and wine laws have been found during that period.



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. 2000), 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). Here, when considering all of the relevant factors associated with proximity to specific institutions along with other general location factors, the permit does not impose an impact upon the community warranting denial of the permit request.



2. Location Factors: Proximity



The proximity of the proposed location to residences, churches, and schools 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 these institutions 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 churches and the schools in the area are all a significant distance from the proposed location when measured by the route across the public thoroughfare. Harvest Baptist Church is at a distance of 1,340 feet, John Wesley Methodist Church is at a distance of 1,310 feet, and Westside High School is 1,297 feet from the proposed location. A third church and a middle school are at unspecified but further distances. Further, the tree line of the landscape and buildings in the area make the churches less visible from the proposed location.



Given the nature of the activities of the convenience store and the fact that an off-premises license is requested, it is unlikely that there will be any interference with church activities or school activities. No live music, recorded music, or other disruptive activity will be conducted. Instead, the activities at the proposed location will consist of retail sales of merchandise not unlike those of other commercial establishments in the area. Considering all of the factors, the proposed location is not within an improper proximity to churches or schools in the area.



While four residences are in the immediate area, the closest is over 500 feet away. Further, the predominate characteristic of the proposed location is that of a commercial area, not a residential one. In the immediate area are several commercial establishments including a Havoline Express Lube, Temco, Inc., Eckerd Drugs along with other commercial establishments along Hwy. 28 Bypass. Overall, the area is primarily commercial in nature and the proposed location will not present a disruptive activity incompatible with residential living.



3. Location Factors: Other



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) (relevant whether granting the permit will place a strain upon police to adequately protect the community); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (relevant whether existing situation already demonstrates insufficient police coverage); Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (relevant whether the proposed location is near other locations that have been a constant source of law enforcement problems). Here, the evidence fails to identify any source of crime at the location and does not present a basis for expecting a police coverage concern. Thus, the impact upon law enforcement is not a basis for denying the permit.

A significant consideration weighing in favor of granting a permit 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 substantially commercial given the existing businesses nearby and the very commercial nature of Hwy 28 Bypass.



In addition, a major consideration in favor of granting a permit is 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). Here, at least one such location is within .25 miles of the proposed location and two more are within two miles. Thus, granting the permit is favored.



Finally, a significant consideration 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 the instant case, beer and wine have been sold at the proposed location for thirty years. Further, during that time no violations of the beer and wine laws have been observed. Under the evidence, the location is no less suitable now than during the former time period. Accordingly, the past record and current conditions support granting the permit now.



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 within an improper proximity to residences, schools, or churches. Further, the other relevant location factors do not suggest the permit should be denied. S.C. Code Ann. § 61-4-520 (Supp. 2000). Accordingly, Bikas's application seeks an off-premises beer and wine permit for a location that is a proper location.



IV. Order



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



DOR shall grant an off-premises beer and wine permit to Action Enterprises of Anderson, L.L.C. with such permit to be utilized at 1003 Pearyman Dairy Road, Anderson, SC.



AND IT IS SO ORDERED.



RAY N. STEVENS

Administrative Law Judge





Dated: August 24, 2001

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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