ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Darris Williams (Williams) filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer and wine permit for 701 Ingram Street, Florence, South Carolina. Protests seeking to prevent DOR from
granting the application were filed by Jimmy Harrison and Phillip Johnson, residents of the area. The protests pursuant to
S.C. Code Ann. § 61-4-525 resulted in this 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).
Here, not all of the requirements for obtaining a beer and wine permit are disputed. Rather, the only dispute is whether the
location for the proposed permit is a proper location. After hearing the evidence and arguments, the relevant factors require
denying the off-premises beer and wine permit.
II. Issue
Does Williams 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
Williams 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 February 28, 2002 Williams filed an application with DOR for an off-premises beer and wine permit which
application is identified by DOR as AI # 32027633-0. 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, Jimmy Harrison and Phillip Johnson challenged the application and presented this
controversy. The hearing for this dispute was held Thursday, September 5, 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 701 Ingram Street,
Florence, South Carolina. The business operates as a grille for the sale of short-order and fast-food items. The hours of
operation will be Monday through Saturday, 8:00 a.m. until 11:00 p.m.
B. Specific Facts of Location
1. Statutory Proximity Factors
The King of Kings Church is 780 feet from the proposed location and the Apostolic Church is less than1,300 feet away; a
City of Florence park with play ground equipment, tennis courts, basketball courts, and a baseball field is 1,300 feet away;
and a private kindergarten with a small number of students is one block away. In addition, the proposed location is in an
area that is a highly populated residential area with the closest residence 118 feet away. The block upon which the
proposed location is situated has at least fifteen residences surrounding the proposed locations but has no commercial
establishments on the same block. In addition, surrounding streets are all residential areas.
2. Other Factors
The area near 701 Ingram Street is an area of high criminal activity with the Chief of Police explaining that the area is a
constant source of police enforcement. The vicinity is known for drug activity and is a common area of enforcement for the
city's five narcotic's officers. Further, this area of Ingram Street is a frequent area for loitering which has created numerous
complaints from the residents of the area.
No significant commercial activity is in the area. Rather, an empty building is across the street from the proposed location
and the only commercial establishment is Ingram Street Grocery, a business that holds an off-premises beer and wine
permit.
Due to the playground facilities, the small private kindergarten, and the loitering in the area, a significant number of
children ages fifteen and under frequent the area.
In addition, the location does not have a sterling past. Prior owners have had shooting and disturbances in the area.
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). In particular, 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 location is within an improper proximity to residences, churches, a playground, and a private kindergarten with
the proximity to any one of these facilities being a proper basis for denial of the requested permit. For instance, the King of
Kings Church is 780 feet from the proposed location and the Apostolic Church is less than1,300 feet away. Further, a city
park with play ground equipment, tennis courts, basketball courts, and a baseball field is 1,300 feet away. In addition, a
small, private kindergarten is one block away. Most significantly, the proposed location is in an area that is a highly
populated residential area. Indeed, the closest residence is only 118 feet away.
3. Location Factors: Other
In addition, numerous other factors warrant denial of the requested permit.
A proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon
law enforcement. For example, a relevant consideration is whether the law enforcement officers have had significant
problems at or near the location. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243
(1975).
Here, the area near 701 Ingram Street is an area of high criminal activity. The vicinity is known for drug activity and is a
common area of investigation for the city's five narcotic's officers. Additionally, this vicinity of Ingram Street is a frequent
area for loitering giving rise to numerous complaints from the residents of the area. Thus, the impact upon law
enforcement is a factor weighing against granting the permit.
A valid consideration suggesting granting a permit is a finding that 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). However, here, no meaningful evidence of commercial activity is present. For
example, an empty building is across the street from the proposed location and the only commercial establishment is
Ingram Street Grocery, a business that already holds an off-premises beer and wine permit.
The presence of children in the area of the proposed location is a consideration weighing against the granting of a permit.
Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). Here, granting the permit is not favored since a significant number of
children ages fifteen and under frequent the area due to the playground facilities, the small private kindergarten, and the
loitering in the area by young people.
Finally, a relevant factor is whether in the past beer and wine have been sold at the same location by former owners and
whether the evidence shows that the location is now more suitable than during the former time period. Taylor v. Lewis,
261 S.C. 168, 198 S.E.2d 801 (1973). Here, the location has a history of prior owners who have not operated businesses
compatible with the residential community. For example, prior owners have operated in an atmosphere that generated
shooting and disturbances to the community. Just as in the past, the area is still a site of loitering and drug activity. Thus,
there is reason to believe that prior problems encountered by past owners will have a tendency to continue even under a
new owner.
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 within an improper proximity to residences, to a school, to churches, and to a
playground. Further, other location factors as described above show the permit is not a suitable location for a beer and
wine permit. Accordingly, Williams' application seeks an off-premises beer and wine permit for a location that is not a
proper location.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR is directed to deny Darris Williams' application for an off-premises beer and wine permit at 701 Ingram Street,
Florence, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: September 10, 2002
Columbia, South Carolina |
