ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Melissa Bone (Bone) filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer
and wine permit for 9833 Powell Road, Georgetown, South Carolina. Protests were filed by Rev. Alford Darby, Thomas E.
Drayton, Rev. Michael J. Frost, Sammy Grayson, Andrew Jones, Micki Livingston, Mabel L. Moultrie, Marie Small,
Evelyn Swinton, Richard Swinton, Emily Woodberry and Ervin Woodberry. Each protest seeks 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 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 Bone meets the requirements of the location being proper.
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 case, the evidence and relevant factors require granting the off-premises beer and wine permit.
II. Issue
Does Bone meet the requirements for an off-premises beer and wine permit in light of an allegation that the location is
improper?
III. Analysis
Proper Location
1. Positions of Parties
Bone 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 February 7, 2001, Bone filed an application with the Department of Revenue for an off-premises beer and wine
permit. The application is identified by DOR as AI # 3202-5233.
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. After notices were posted by SLED and by the applicant, several protestants
challenged the application giving rise to this controversy. The hearing for this dispute was held Thursday, September 13,
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 9833 Powell Road,
Georgetown, SC with Bone living approximately a mile and a half away. The business is a convenience store with business
hours of 9:00 a.m. to 9:00 p.m. on Monday, Tuesday, Thursday, Friday, and Saturday. On Wednesday the store will be
open from 9:00 a.m. to 6:00 p.m. with the store closed on Sunday. The operation will not provide live music.
B. Specific Facts of Location
1. Statutory Proximity Factors
When following the flow of traffic along the public thoroughfare, the House of Prayer is 291 feet from the proposed
location. Likewise, Mt. Zion A.M.E. Church is 427 feet from the location. The times of operation of the proposed location
show the business is not open on Sunday and closes at 6:00 on Wednesday. Further, during all hours of operation, no live
music is provided. In addition a fence surrounds the building on all four sides with the front of the building being open to
the highway.
No schools are in the immediate area. Rather, the nearest school is Sampit School, ten miles away.
Four residences are in the immediate area but no other residential housing is nearby. The four residences in the immediate
area are at distances of 68 feet, the next is 145 feet, the third is 309 feet, and the fourth is 423 feet from the proposed
location. The four residences are on the opposite side of the highway from the proposed location. Considering the overall
nature of the area in which the beer and wine permit will be used, the area is not primarily residential but is rather a rural
setting along a major highway, US. Highway 17.
2. Other Factors
The area near the proposed location does not show a current problem with crime. Indeed, while loitering has been a
problem in the past, no records of law enforcement officials were shown to establish incidents of crime occurring in and
around the proposed location. Further, since opening in November of 2000, no evidence of loitering or other criminal
activity has been established. Likewise, as for drug activity, no law enforcement records show incidents involving drugs at
the location for the time period being operated by Bone.
Powell Road (Highway 17) provides an adequate traffic route for the proposed location. The speed limit is 45 mph along a
relatively flat stretch in front of the location. While parking is not plentiful on the front, spaces are available for at least six
vehicles. The evidence does not establish that accidents or traffic violations have occurred at the proposed location.
The proposed location is in an area primarily classified as rural but having a mix of commercial and residential uses. For
example, the area has at least one commercial business operating as an auto repair shop.
The current application is not the first introduction of beer and wine at this precise location. The proposed location was
previously operated with an on-premises beer and wine permit from 1983 to 1998. In 1998, the on-premises permit was
denied renewal but an off-premises permit was allowed.
Finally, the area has other establishments that hold either a beer and wine permit or an alcohol license. For example, half a
mile away is Happy Landing and one mile away is Long Branch with both holding on-premises beer and wine permits.
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. 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.
2. Proximity to Specific Institutions
The proximity of the location to residences, churches, schools, and playgrounds 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 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, no schools are in the immediate area since the nearest school is Sampit School, ten miles away. Thus, the proposed
location is not within an improper proximity to schools. However, churches and residences are nearby.
The proposed location is not within an improper proximity to the two churches in the area. A fence surrounds the building
on all four sides and thus forms a separation from the churches. In addition, the distance is not so close as to be disruptive
to the church. For example, when following the flow of traffic along the public thoroughfare, the House of Prayer is 291
feet from the proposed location and Mt. Zion A.M.E. Church is 427 feet from the location. Significantly, the times of
operation of the proposed location show the business is not open during the most typical church hours since the business is
closed on Sunday and closes at 6:00 on Wednesday. Further, during all hours of operation, no live music is provided.
Considering all of the factors, the proposed location is not within an improper proximity to churches in the area.
Likewise, the proposed location is not within an improper proximity to residences in the area. Here, all residences are on
the opposite side of Highway 17 from the proposed location. Most importantly, the business will close at 9:00 p.m. and
thus does not present a problem with the normal hours of rest and sleep associated with residential living. Finally, the area
does not contain an unusually large number of residences. Rather, only four are in the immediate area and even then at
least one other commercial establishment is nearby. Thus, the area is not primarily residential in nature. Accordingly, the
proximity to residences is not a basis for denying the permit.
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. For example, consideration can be given to whether the evidence shows the permit will place a strain
upon police to adequately protect the community. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417
S.E.2d 555, 556 (1992). Such strain can be shown by evidence establishing insufficient police to cover the likely crowd
that might gather at the location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). Likewise, one can consider
whether there are nearby locations that either have been a constant source of law enforcement problems or are locations
where young people congregate and loiter. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984).
Here, the area does not show a current problem with crime and thus does not demonstrate that a strain on police coverage
will result from granting the permit. Since opening in November of 2000, no evidence of loitering or other criminal
activity has been established. Likewise, no evidence demonstrates the existence of other nearby operations that will present
a source of crime. Finally, as for drug activity, no law enforcement records show incidents involving drugs at the location
for the time period being operated by Bone. Thus, no strain on existing police resources has been shown.
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,
Powell Road (Highway 17) provides an adequate traffic route for the proposed location. The speed limit is 45 mph along a
relatively flat stretch in front of the location. While parking is not plentiful on the front, spaces are available for at least six
vehicles. Thus, the evidence does not establish that accidents or traffic violations will occur at the proposed location and
does not present a basis for finding a traffic concern if the permit is granted.
One should also consider whether the applicant and the applicant's family live in close proximity to the location. Taylor v.
Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, Bone is not totally removed from the area since she lives
approximately one and a half miles away. Thus, she will be readily available to address concerns of the community.
Consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within the
area and to whether the current location has sold beer and wine in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801
(1973). Here, other beer and wine outlets are within a half mile of the proposed location and beer and wine was sold at this
precise location from 1983 to 1998.
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, churches, and playgrounds.
Further, other location factors do not indicate a reason to deny the application for an off-premises beer and wine permit.
S.C. Code Ann. § 61-4-520 (Supp. 2000). Accordingly, Bone'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 is ordered to grant Melissa Bone's application for an off-premises beer and wine permit to be used at 9833 Powell
Road, Georgetown, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: October 9, 2001
Columbia, South Carolina |
