SC Administrative Law Court Decisions

Nickolas J. Petrone and Dorothea Petrone (Petrone) filed with the South Carolina Department of Revenue (DOR) an application for an on-premises beer and wine permit for 592 Hwy 701 N., Loris, South Carolina. Protests were filed by Rev. Mark Stevens and other members of the church Rev. Stevens pastors 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. 2001) 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 granting or denying of the permit turns upon the disputed matter of whether Petrone meets the requirements of the location being proper. After considering the evidence and applying the relevant factors, the law does not deny the requested on-premises beer and wine permit.

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

1. Positions of Parties

Petrone 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 October 16, 2001, Petrone filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 3202-6499. 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, protests were filed by Rev. Mark Stevens and members of his church challenging the application. The hearing for this dispute was held Thursday, April 4, 2002, 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 592 Hwy 701 N., Loris, SC. The business is a restaurant with business hours of 5:00 p.m. until 9:00 p.m. Tuesday through Thursday; 5:00 p.m. until 10:00 p.m. Friday and Saturday. The location will provide seating for sixty and will not provide live music.

B. Specific Facts of Location

1. Statutory Proximity Factors

Glendale Baptist Church is .6 mile from the proposed location. No evidence identifies any interference with the church related activities of the congregation due to the presence of the restaurant. For example, no evidence connects the restaurant to such inappropriate activities as litter, loitering, or trespassing on church property. Rather than interference with church activities, the opposition to the permit is on the religious grounds that alcohol is inconsistent with the church's religious beliefs.

As to the immediate area, no schools are in the vicinity and no playground is nearby. Indeed, the area is not primarily a residential area but instead the norm along Highway 701 North is that of commercial development.

2. Other Factors

The area near 592 Hwy 701 North is not an area noted for criminal activity. No records of law enforcement officials were produced to show crime occurring in and around the proposed location. In fact, no significant involvement of law enforcement has been required in the recent past. Likewise, no evidence of drug activity is present at the proposed location or in the immediate vicinity.

Traffic routes in the area are adequate for the proposed location. Highway 701 North fronts the restaurant and provides proper ingress to and egress from the property. The highway is a paved two-lane route with a speed limit of 40 miles per hour. No evidence establishes any traffic accidents or unsafe conditions at the proposed location.

The proposed location is in an area with other business establishments. The area is home to several businesses including State Farm Insurance, Loris Commerce Center, Movie Max, McDonald's, and Quick Silver Auto Sales. Overall, the area is primarily commercial in nature.

Petrone lives in the immediate area and will operate and supervise the restaurant. In fact, the protestants have no complaint with Petrone and admit that if no consideration were given to the dispute concerning the on-premises beer and wine application, the establishment itself as created by Petrone is an asset to the community.

Other establishments in the vicinity hold either a beer and wine permit or an alcohol license. For example, a Food Lion nearby holds an off-premises beer and wine permit and TC's Bar and Grill approximately .5 of a mile away holds an on-premises beer and wine permit as well as a minibottle license.

Finally, Petrone has previously operated a pizza restaurant located .3 of a mile from the proposed location. At that location, she held a beer and wine permit and operated for 10 years without violations or incidents and had no citations issued related to beer and wine.

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). Considering all of the relevant factors for this location, the impact upon the community is not such that the application can be denied.

2. Location Factors: Proximity

For example, 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, the proposed location is not within an improper proximity to Glendale Baptist Church. The church is .6 of a mile from the proposed location, and no evidence identifies any interference with the church related activities of the congregation due to the presence of the restaurant. No evidence connects the restaurant to litter, loitering, or trespassing on church property. Further, as to the immediate area, no schools are in the vicinity and no playground is nearby. Indeed, the area is not primarily a residential area; instead, the norm on Highway 701 North is commercial development.

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); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). Here, no evidence of crime or drug activity exists for the immediate area surrounding the restaurant. Thus, no need is established for likely police intervention at the location. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Likewise, no traffic or unsafe conditions exist at the location to present an accident prone area. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

Further, a relevant factor is whether the area is isolated and rural. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, the area is within the city limits of Loris and is easily accessible. In fact, 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). Such is the case here since the area includes several businesses such as State Farm Insurance, Loris Commerce Center, Movie Max, McDonald's, and Quick Silver Auto Sales. Such a factor weighs in favor of granting the permit.

Also, a proper consideration is 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, Petrone lives in the immediate vicinity. A proper consideration is whether, absent the beer and wine permit, 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, several protestants admit the restaurant would present no problem without the beer and wine permit.

Finally, 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). In this case, a nearby Food Lion holds an off-premises beer and wine permit and TC's Bar and Grill approximately .5 of a mile away holds an on-premises beer and wine permit as well as a minibottle license.

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 present a basis for denying the application under the requirements for a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 2000). Accordingly, Petrone's application seeks an on-premises beer and wine permit for a location that is a proper location.

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

DOR is directed to grant Nickolas J. Petrone and Dorothea Petrone's application for an on-premises beer and wine permit at 592 Highway 701 North, Loris, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: April 9, 2002

Columbia, South Carolina