South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Philadelphia Travelers Motorcycle Club, a nonprofit corporation vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Philadelphia Travelers Motorcycle Club, a nonprofit corporation
9032 Wilson Road, Columbia, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
02-ALJ-17-0058-CC

APPEARANCES:
Petitioners & Representative: Philadelphia Travelers Motorcycle Club, a nonprofit corporation, 9032 Wilson Road, Columbia, SC, Pro se

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

Parties Present: Petitioner present, Respondent excused, Protestants present.
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case



Nathaniel Johnson, Jr. (Johnson) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 9032 Wilson Road, Columbia, SC. Protests were filed by David Ray, Ethel T. Ray, John Fogle, and Max Gergel seeking to prevent DOR from granting the application. The protests were filed pursuant to S.C. Code Ann. § 61-4-525 and resulted in a contested case before the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 2001), 1-23-600(B) (Supp. 2001) and 1-23-310 (Supp. 2001).



II. Issue



Not all of the requirements for obtaining a beer and wine permit are disputed. Rather, the granting or denying of this permit turns upon the disputed matter of whether Johnson meets the requirement of providing a location that is proper.



III. Analysis



Proper Location



1. Positions of Parties



Johnson asserts the location is proper. 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



On or about January 7, 2002 Johnson filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 3202-6944. 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 David Ray, Ethel T. Ray, John Fogle, and Max Gergel challenging the application. That challenge has given rise to this contested case.



The proposed business (and the place where the beer and wine permit will be utilized) is located at 9032 Wilson Road, Columbia, SC with the location providing 30-40 parking spaces for patrons. However, many more motorcycles could be parked on the premises. In fact, as many as 75 to 100 patrons could be on the premises at one time.



While the business will be open to the public, its primary function is that of a clubhouse for members of the Philadelphia Travelers Motorcycle Club. The planned business hours will be Monday through Thursday 4:00 p.m. until 12:00 a.m., Friday and Saturday 4:00 p.m. until 2:00 a.m., and closed on Sunday. The facility will provide the sale of snack food as well as short order food. Current plans are to have recorded music but no live music, no pool tables and no video games.



B. Specific Facts of Location



1. Statutory Proximity Factors



The presence of schools, playgrounds, churches, and residences can be factors in granting or denying a beer and wine permit. In the instant case, neither schools nor playgrounds are pertinent since none are in the immediate area.



As for churches, when measured consistent with applicable regulations, the Apostolic Church of God is at a distance of 605 feet from the proposed location. While two other churches are in the general area, they are at distances significantly further than the 605 feet of the Apostolic Church of God.



The nearest subdivision, Lake Elizabeth Estates, is approximately 600 yards away "as the crow flies" but no residences of that subdivision are in the immediate vicinity of the proposed location. Rather, only one residence is in the immediate area of the proposed location. That residence is 340 feet from the proposed location, is separated from the proposed location by a street (Fairlawn Court), and is fenced along the Fairlawn Court side of the residence. The proposed location is surrounded by a wooded area along Fairlawn Court as well as behind the proposed location. Across Wilson Road are a stand of trees and an open field.



2. Other Factors



The area near 9032 Wilson Road, Columbia, SC is not a significant source of crime. No records of law enforcement officials were presented to show incidents of crime occurring in and around the proposed location. In particular, no law enforcement records were presented to show the presence of drug arrests or convictions in the area.



Law enforcement coverage is adequate in the area. A Richland County Sheriff's substation is in the area and officers patrol along Highway 21 as well as in the surrounding community.



A concern exists among some residents of the area that Wilson Road (also identified as Highway 21) fails to provide an adequate traffic route for the proposed location. Wilson Road is a two lane highway with a speed limit of at least 35 mph but less than 55 mph. The portion of Wilson Road immediately in front of the proposed location is relatively straight. However, for a vehicle seeking to leave the location by entering Wilson Road, to the left, the driver will see a curve originating near the entrance to Fairlawn Court. The curve is marked with directional warning signs cautioning the driver.



The evidence demonstrates the roadway is a frequently traveled traffic artery since the area along Highway 21 is primarily commercial. For example, Broughton Womack Pool Service is very near the location and is one of several commercial establishments along Highway 21. In light of the traffic carried by the highway, the lack of any law enforcement records showing a history of accidents at the proposed location is particularly significant. Indeed, no record of law enforcement was presented to show that the posted speed limit and directional warning signs are inadequate to control vehicle traffic at this location. The lack of such evidence is especially telling here in that the proposed location previously operated as Fairlawn Liquors from 1996 to 2000.



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: Proximity



Under S.C. Code Ann. § 61-4-520 (Supp. 2001), 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).



A meaningful review of the impact of granting a permit in this case must consider the proximity of the location to residences, churches, schools, and playgrounds. 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). The protestants argue that the proposed location is within an improper proximity to the Apostolic Church of God and to residences.



First, the protestants argue under Regs. 7-55 that the proposed location is within a improper distance to a church since the Apostolic Church of God is less than 500 feet from the proposed location. Such a position is both factually and legally incorrect. In this case, the SLED Agent's report shows the church is 605 feet away. While Exhibit 3 presented by the protestants depicts a measurement of 348 feet to the church, I find the SLED Agent's measurement of 605 feet more persuasive. The SLED Agent is accustomed to making such measurements and is more likely to make such measurements more accurately under the peculiar measurement requirements of Regs. 7-55. Further, and more controlling of this issue, the measurement requirements of Regs. 7-55 do not apply to a beer and wine permit. Rather the distance measurement applies only to a liquor license such as a minibottle license or a retail liquor store. S.C. Code Ann. § 61-6-120 (Supp. 2001); see Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972) (measurement of 500 feet applicable to liquor but not to beer and wine permits).

Second, the protestants argue the location is too close to residential areas. However, the facts simply do not support this position. Here, the nearest subdivision is 600 yards away and no residences of that subdivision are in the immediate vicinity of the proposed location. In fact, only one residence is in the immediate area of the proposed location with that residence being 340 feet from the proposed location, separated from the proposed location by a street (Fairlawn Court), and fenced along the Fairlawn Court side of the residence. The single residence is not part of a subdivision development. Further, the proposed location is surrounded by a wooded area which is both along Fairlawn Court as well as behind the proposed location. Across the street is a small stand of trees and an open field across. Thus, under all of the facts of this case, the proximity to residences is not improper.



2. Location Factors: Other



The impact upon law enforcement from granting the permit is a relevant consideration. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). For example, one measure of the impact is whether the location will place a strain upon existing police coverage. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). Here, law enforcement coverage is adequate in the area due to a Richland County Sheriff's substation being located nearby. Likewise, the area near the proposed location has not been shown to be a significant source of crime nor does the record demonstrate the presence of drug activity near the location.



The danger due to highway traffic is a consideration. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). While a concern exists that Wilson Road will present a safety hazard, the evidence does not support such a view.



Here, no law enforcement records show a history of accidents at the proposed location. For example, no record of law enforcement shows that the posted speed limit and directional warning signs are inadequate to control vehicle traffic at this location. The lack of such evidence is especially significant here since the proposed location previously operated as Fairlawn Liquors from 1996 to 2000. Nothing in this record shows a traffic hazard from the prior operation at this location.



A valid consideration is the commercial nature of the area. 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). In this case, the immediate area along Wilson Road is commercial.



Further, the extent to which children are or are not in the area of the proposed location is a valid consideration. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). Here, consistent with the commercial nature of the area, no significant presence of children has been shown.



Finally, a relevant factor is whether alcohol has 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). Here, the location has been previously operated as Fairlawn Liquors from 1996 to 2000. During that time period, the presence of a liquor license at the location did not demonstrate an incompatibility with the surrounding commercial area. While the current permit seeks an on-premises permit for beer and wine, the past operation of an "off premises" retail liquor store is some evidence of a prior compatibility with the surrounding community.



3. Location Factors: Limitations on Permit



Finally, when required, it is appropriate to impose restrictions. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 2001); 23 S.C. Code Regs. 7-88 (1976).



Here, noise is a concern of the nearby subdivision of Lake Elizabeth Estates. That concern is not unfounded since the primary purpose of the location is to serve as a clubhouse for motorcycle enthusiasts. In fact, the testimony is that as many as 75 to 100 patrons could be on the premises at one time. Even the quietest of motorcycles can produce excessive noise when assembled in large numbers. Further, when measured in a straight line consistent with the travel of sound, at least one residence is approximately 150 feet away while residents of a subdivision are 600 yards away.



Accordingly, some accommodation is required to assure that noise does not infringe on the normal rest and sleep requirements of residents in the area. The greatest infringement from noise is most likely to occur in the hours after midnight since hours beyond midnight are most associated with sleep. Thus, the permit cannot be granted except as restricted to having no operating hours beyond midnight and to allow no loitering on the premises after midnight.



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, no other location factors warrant denial of the requested beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 2001). However, the permit is proper only if the business operating with the permit restricts its hours to closing at midnight and allowing no loitering on the premises after midnight. With that restriction, Johnson's application seeks an on-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 Nathaniel Johnson, Jr.'s application for an on-premises beer and wine permit at 9032 Wilson Road, Columbia, SC. However, that permit must be restricted so that the business operating with the permit must close at midnight and allow no loitering on the premises after midnight. Furthermore, any violation of the restriction shall be considered a violation against the permit and may result in a fine, suspension, or revocation.



AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge



Dated: June 11, 2002

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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