SC Administrative Law Court Decisions

Ethel Johnson (Johnson) filed with the South Carolina Department of Revenue (DOR) an application for an on-premises beer and wine permit for 602 l/2 Taylor Street, Rock Hill, South Carolina. Protests were filed by Harvey L. Camp, Reverend Larkin Lee Hancock, Sr., and Margaret Roddey seeking to prevent DOR from granting the permit. In accordance with S.C. Code Ann. § 61-4-525 the protests produced 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).

In this matter, the only dispute is whether the location is a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 2001). After considering the evidence and relevant factors, the permit for an on-premises beer and wine permit must be granted.

Does Johnson 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

Johnson asserts she meets all 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 May 1, 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 # 32028147-7. 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 Harvey L. Camp, Reverend Larkin Lee Hancock, Sr., and Margaret Roddey.

The hearing for this dispute was held Friday, August 23, 2002, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants. The only protestant present at the hearing was Rev. Hancock.

The proposed business (and the place where the beer and wine permit will be utilized) is located at 602 l/2 Taylor Street, Rock Hill, South Carolina. The business is a bar and grill open only on Thursday, Friday, and Saturday with hours on Thursday and Friday being 6:00 p.m. until 11:00 p.m. and on Saturday being 6:00 p.m. until midnight. The operation will provide seating for approximately 25 people and no live music will be provided.

B. Specific Facts of Location

1. Statutory Proximity Factors

Proximity to schools, churches, and residences is a relevant factor. As to schools, no schools are in the immediate area with the closest being several miles away. One church, First Calvary Baptist Church, is between 260 and 360 feet from the proposed location and is on the opposite side of the highway which separates the two. Given the distance and location on the opposite side of the highway, the proposed location's building is only partially visible from the church. No other churches are in the immediate area.

Some residences are in the area. However, the closest residence is 187 feet and, like the church, is on the opposite side of Taylor Street than the proposed location. Further, no residents from the immediate area protested the location.

2. Other Factors

No records of law enforcement officials show the area near 602 l/2 Taylor Street, Rock Hill, South Carolina as being an area of criminal activity. Further, witnesses familiar with the community attested to the area being untroubled by significant crime. In addition, a city police substation is less than .5 mile away and can provide adequate police coverage to the area. Finally, no evidence shows Whitner and Taylor Streets as being inadequate traffic routes for the proposed location.

Approximately a mile from the proposed location is Adams Grocery, a building similar to the proposed location in that it also houses a grill and holds an on-premises beer and wine permit. The proposed location is not new to a beer and wine permit. Rather, the location has been essentially continuously operated as a grill with a beer and wine permit since at least 1978. The current applicant will continue the location in the same manner as previous owners and no evidence exists to show that the previous locations were cited for beer and wine violations.

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. 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).

2. Location Factors: Proximity

In evaluating the impact upon the community, 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 closest school is several miles away. As to churches, only one church, First Calvary Baptist Church, is in the area. That church is approximately 300 feet from the proposed location, is on the opposite side of the highway, and is only partially visible from the proposed location. Further, the proposed location will be closed on Wednesday and Sunday and thus will not present a time conflict with the normal hours of worship at the church. Finally, as to residences, the closest residence is 187 feet and, like the church, is on the opposite side of Taylor Street from the proposed location. In addition, no residents from the immediate area protested the location. Thus, under all of the facts of this case, the proposed location is not within an improper proximity to schools, churches, or residences.

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 records of law enforcement officials were introduced to show the area as being an area of criminal activity. The lack of such evidence is supported by witnesses familiar with the community who explained that the area is free of significant crime. Of importance is the fact that a city police substation capable of providing adequate police coverage to the area is less than .5 mile away.

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, as to police concerns on traffic and safety, no evidence shows Whitner and Taylor Streets as being inadequate traffic routes for the proposed location.

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). Here, approximately a mile from the proposed location is Adams Grocery, a building similar to the proposed location in that it also houses a grill and holds an on-premises beer and wine permit.

Finally, a relevant factor is whether in the recent past beer and wine have 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). In this case, the proposed location has been essentially continuously operated as a grill with a beer and wine permit since at least 1978. The current applicant will continue the location in the same manner as previous owners and no evidence exists to show that the previous locations were cited for beer and wine violations.

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, consideration of all other relevant location factors demonstrate the statutory requirements for a beer and wine permit have been satisfied. S.C. Code Ann. § 61-4-520 (Supp. 2001). Accordingly, Johnson's application seeks an on-premises beer and wine for a location that is a proper location.

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

DOR is ordered to grant Ethel Johnson's application for an on-premises beer and wine permit at 602 l/2 Taylor Street, Rock Hill, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: August 29, 2002

Columbia, South Carolina