SC Administrative Law Court Decisions

Fiesta Mexican Restaurant, Inc. (Fiesta) 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 543 West Main Street, Williamston, South Carolina. Protests were filed by several citizens in the area with Fred Alexander acting as spokesperson for the group.

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, not all of the requirements for obtaining a beer and wine permit or for a mini-bottle licence are disputed. Rather, the only disputed requirement is whether the location is a proper location. After evaluating the evidence and relevant factors, the on-premises beer and wine permit and consumption (minibottle) license must be granted.

Does Fiesta meet the requirements for an on-premises beer and wine permit and consumption (minibottle) license in light of an allegation that the location is improper?

1. Positions of Parties

Fiesta asserts it meets the statutory requirements. DOR states it would have granted the permit and license but for the filing of protests asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. The protestants assert the permit and license 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 March 20, 2001 Fiesta filed an application with the Department of Revenue for an on-premises beer and wine permit and consumption (minibottle) license. The application is identified by DOR as AI # 3202-5180. 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, protestants challenged the application and presented this controversy. The hearing for this dispute was held Thursday, September 11, 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 permit and license will be utilized) is located at 543 West Main Street, Williamston, SC. The location will not have a bar area or a lounge area but rather is a restaurant providing seating for approximately 100. Business hours will be from 11:00 a.m. until 10:00 p.m. Monday through Sunday.

B. Specific Facts of Location

1. Statutory Proximity Factors

Calvary Baptist is 571 feet from the proposed location. The church has typical worship activities on Wednesday and Sunday with activities on other days of the week as scheduled. While a preschool ministry is present at the church, no other schools are in the immediate area. In addition, no significant number of residences are in the area and the nearest residence is 260 feet from the proposed location.

2. Other Factors

In the area near 543 West Main Street, Williamston, SC, no records of law enforcement officials show any incidents of crime. Further, no law enforcement records show incidents involving drugs at the location. Likewise, traffic patterns at the location follow Main Street traffic and no evidence demonstrates a traffic hazard at the location.

Considering the area as a whole, the predominant characteristic is that of a commercial district. In fact, the immediate area surrounding the proposed location is a shopping strip mall containing a thrift store, a siding business, pest control, beauty salon, barber shop, Chinese restaurant, a pawn shop, and a general merchandise store. From the view of area residents, if no consideration were given to the dispute concerning the on-premises beer and wine permit and consumption license, the establishment itself as created by Fiesta will be an asset to the community.

The immediate surrounding area has no establishments that hold either a beer and wine permit or an alcohol license. In addition, the proposed location has not previously operated with a beer and wine permit or minibottle 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. Introduction

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. Likewise, a consumption license may not be granted unless the location is suitable. 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 consumption license is properly granted only if the location is a suitable location).

In deciding if a location is proper, in general, consideration may be given to any factors that demonstrate the 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).

2. Factors Considered

Numerous factors are relevant to a determination of whether a location is proper. In this case, the weighing of those factors require concluding that the location is proper.

a. Churches and Residences

A significant factor is the proximity to churches and residences. 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, for a beer and wine permit, the sole factor of an improper proximity to either a church or a school 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). However, whether the proximity is improper depends upon the facts of each case.

Here, Calvary Baptist is 571 feet from the proposed location. Thus, the church is not directly adjacent to the location. In addition, the area immediately around the proposed restaurant is highly commercial and is not incompatible with the proposed business.

Further, no incompatibility is likely to result from the restaurant's mode of operation. For instance, no music, either recorded or live, will be present. Further, the restaurant will not have a lounge or bar area. Thus, the atmosphere of the location will be that of a full menu restaurant and not that of a bar. Accordingly, based upon all of the facts of this case, the location is not within an improper proximity to the church.

Likewise, the proposed location is not within an improper proximity to residences in the area. Rather, the proposed business is located in a commercial area on Main Street with very few residences in the immediate area. The closest is 260 feet from the proposed location, but that residence is on the other side of Main Street. Thus, again, considering all of the facts of this case, the proposed location is not within an improper proximity to residences.

b. Law Enforcement

A proper consideration for reviewing a beer and wine permit and a consumption license is examining the impact granting the permit will have upon law enforcement. 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); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

Here, no evidence establishes a problem with a lack of law enforcement or a history of crime in the area. Indeed, no law enforcement officials testified as to any crime in the area nor is any evidence present to suggest drug activity in the area.

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, vehicle operators utilize Main Street traffic and no evidence demonstrates a traffic hazard at the location.

c. Other Significant Factors

A valid consideration is whether th e 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 proposed location is in a highly commercial area since it is within a shopping strip mall containing a thrift store, a siding business, pest control business, beauty salon, barber shop, Chinese restaurant, a pawn shop, and a general merchandise store.

Another proper consideration is whether, absent the alcohol dispute, the establishment would be an asset to the community. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). In this case, excluding the dispute as to alcohol, the business will be an asset since the establishment is a full menu restaurant with a wide range of Mexican dishes.

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 churches or residences. Further, other location factors do not present a basis for denying the permit or license. Accordingly, Fiesta's application seeks an on-premises beer and wine permit and consumption (minibottle) license for a location that is a proper location.

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

DOR shall grant Fiesta's application for an on-premises beer and wine permit and consumption (minibottle) license at 543 West Main Street, Williamston, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: October 17, 2001

Columbia, South Carolina