ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Billy W. Tollison (Tollison) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 4836 South Highway 81 in Starr, South Carolina. Protests were filed by several
neighboring residents 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. Rather, the granting or denying
of the permit turns upon the disputed matter of whether Tollison meets the requirements of having a proper location.
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. ), 1-23-600(B) (Supp. ) and 1-23-310 (Supp. ). The
evidence and relevant factors require granting the permit.
II. Issue
Does Tollison meet the requirements for an on-premises permit in light of an allegation that the location is improper?
III. Analysis
Proper Location
1. Positions of Parties
Tollison 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 17, 2002, Tollison filed an application with the Department of Revenue for an on-premises beer and
wine permit. The application is identified by DOR as AI # 3202-7997-0. 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, several citizens of the area challenged the application and
presented this controversy. The hearing for this dispute was held August 13, 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 4836 South Highway
81, Starr, South Carolina. The business is a bar with business hours of Monday through Friday from 11:00 a.m to 2:00 a.m.
and Saturday from 11:00 a.m. until midnight. The operation will not provide live music.
B. Specific Facts of Location
1. Statutory Proximity Factors
Mount Mariah Baptist Church is .3 of a mile from the proposed location. Three residences are in the area at distances of
235 feet, 352 feet, and .2 of a mile. The residence that is .2 of a mile is separated from the proposed location by a stand of
trees. No schools are in the immediate area.
2. Other Factors
The area near the proposed location has not had significant criminal activity. No introduced records of law enforcement
officials show incidents of crime at the proposed location. Further, the testimony stated that the area as a whole is not a
problem vicinity and available law enforcement is nearby at a distance of approximately five miles.
Tollison lives in the immediate area with his residence being next door to the proposed location. Consistent with the rural
nature of the area, no significant number of children will congregate nearby. In fact, an industrial plant is across the street
and the location is situation on a four lane highway with a speed limit of 45 miles per hour. The granting of the permit is
consistent with the past usage of the location since a beer and wine permit has been in existence at the location since
approximately 1949.
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
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 examining the location, the proximity to residences and churches 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 only church near the proposed location is that of Mt. Mariah Baptist Church, a church at a distance of .3 of a mile.
No persuasive evidence establishes an incompatibility with the location. For example, the proposed location will be closed
on Sunday and the church is a meaningful distance away. Further, the church is on the opposite side of the highway from
the location and the highway acts as a material separation buffer from the church. Thus, when considered as a whole, the
proposed location is not within an improper proximity to the church.
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 establishes a meaningful degree of crime in the area.
Likewise, police assistance is relatively nearby at a distance of five miles. Further, 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). No evidence establishes a record of traffic
accidents.
A meaningful factor is whether the applicant and his family live close by. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801
(1973). Here, the applicant and his family live next door to the location. Thus, the incentive to operate a location
consistent with orderly conduct is quite high.
A valid consideration is whether the surrounding area is substantially commercial (see 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)) and whether children are or are not in the area of the proposed location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d
301 (1972). Here, an industrial facility across the street gives this rural area a commercial atmosphere and the lack of
residences gives a lack of children. Thus, such factors weigh in favor of granting the permit.
Finally, a significant factor is whether beer and wine have been sold at the same location by former owners and whether 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 operated consistently since 1949 in a manner that offered beer and wine for sale to the
public. To proposed location will thus carry on an activity that has been a part of the community for quite some time.
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.
The proposed location in not within an improper proximity to residences, schools, churches, and playgrounds. Further, the
other location factors weigh in favor of granting the beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 2001).
Accordingly, Tollison'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 shall grant an on-premises beer and wine permit to Billy W. Tollison for use at a business known as El Paso located
at 4836 South Hwy. 81, Starr, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: August 13, 2002
Columbia, South Carolina |
