SC Administrative Law Court Decisions

Steve Tucker (Tucker) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine and a minibottle license for 330 White Horse Rd., Greenville, South Carolina. However, Tucker subsequently amended his application to delete his request for a minibottle license. Thus, only the request for a beer and wine permit is now pending. Protests were filed by Jess Corn (Corn) and Brandon Westmoreland, Jr. seeking to prevent DOR from granting the requested permit with Corn seeking and being admitted as a party intervenor.

In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. Rather, here the dispute turns upon whether Tucker meets the requirement that the location must be 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. 2001), 1-23-600(B) (Supp. 2001) and 1-23-310 (Supp. 2001). The evidence and relevant factors require granting the on-premises beer and wine permit.

Does Tucker 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

Tucker 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. Corn and 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 24, 2002 Tucker filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 32028384-9. 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, a protest was filed by Jess Corn challenging the application. The hearing for this dispute was held Wednesday, October 30, 2002, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the intervenor.

The proposed business (and the place where the beer and wine permit will be utilized) is located at 330 White Horse Rd., Greenville, South Carolina. The business is a private club operating as a bar and grill with business hours of Thursday through Saturday, 9:00 p.m. until 2:30 a.m. The operation will provide seating for 100.

B. Specific Facts of Location

1. Statutory Proximity Factors

The location was investigated by SLED with the investigating agent drawing a map generally depicting the immediate area of the proposed location. At the point of the proposed location, the area is highly commercial. No residential subdivisions are in the immediate vicinity and no church is within the surrounding area. Likewise, no schools are nearby.

2. Other Factors

Police involvement at the location and immediate area is minimal. While some crime is in the area based on anecdotal testimony identifying batteries being stolen from parked vehicles, no records of law enforcement officials were introduced to show incidents of crime occurring in and around the proposed location. Likewise, no law enforcement records show liquor violations at or near the location. As for drug activity, again, no law enforcement records were submitted to show incidents involving drugs at the location. Finally, the area near the intersection of White Horse Road and Hwy. 291 provides adequate traffic routes for the proposed location with no evidence of inherent conditions creating dangers of traffic accidents.

The general character of the area is that of a highly commercial vicinity in which other beer and wine permits as well as liquor licenses exist. For example, the area is home to White Horse Garage, Westmoreland Landscaping (located immediately behind the proposed location), an office building, the White Horse Party Shop, a laundry mat, an ABC Store, a Pumpers Service Station, Eckerd Drugs, and Bank of America. In the immediate past, the proposed location was operated as a hair salon.

A significant concern of the intervenor and the protestants is the availability of parking. Parking at the proposed location is limited to 30 feet wide (the width of the front of the building) to approximately 76 feet deep (measuring from White Horse Road to the front of the building). However, additional parking is available to the left of the proposed location. That area is owned by the White Horse Garage. The White Horse Garage will provide additional parking with an approximate width of 56 feet wide and a depth of 70 feet. Parking is not available to the right since the intervenor has denied access to that area. Likewise, parking in the rear has been denied.

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).

2. Location Factors: Proximity

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). Here, the evidence does not establish an improper proximity to residences. Rather, the area fronting White Horse Road is a commercial environment posing no interference to residential areas. Likewise, no evidence establishes the presence of any schools, playgrounds, or churches in the immediate area. Thus, no forbidden proximity exists in this case.

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) (evidence that granting the permit will place a strain upon police to adequately protect the community must be weighed); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (evidence of insufficient police to cover the gathering of people at the location should be considered).

Here, evidence of a need for police involvement at the location is minimal. While the testimony establishes that on occasion crimes against property by means of petty theft have occurred, no records of law enforcement officials were introduced to show incidents of crimes against persons occurring in and around the proposed location. Thus, no evidence was introduced of fighting, assaults, etc. Likewise, no law enforcement records show liquor violations at or near the location. As for drug activity, again, no law enforcement records were submitted to show incidents involving drugs at the location. The lack of significant police involvement weighs in favor of granting the permit.

Consideration can be given to the extent to which the highway traffic presents a location that 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, the area is near the intersection of White Horse Road and Hwy. 291. Those routes provide adequate traffic access to the proposed location and no evidence exists here of inherent conditions creating dangers of traffic accidents. Therefore, such factors weigh in favor of granting the permit

Additionally, the degree to which the area is characterized as substantially commercial and has other beer and wine permits or liquor licenses in the area is relevant. 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). Here, the general character of the area is highly commercial and is one in which other beer and wine permits as well as liquor licenses exist. In this immediate area are the businesses of White Horse Garage, Westmoreland Landscaping (located immediately behind the proposed location), an office building, the White Horse Party Shop, a laundry mat, an ABC Store, a Pumpers Service Station, Eckerd Drugs, and Bank of America. Again, the presence of a commercial environment and other beer and wine and liquor licenses weighs in favor of granting the permit.

In this case, a significant concern of the intervenor and the protestants is the availability of parking. Parking is not available to the right of the proposed location since the intervenor has denied the applicant access to that area. Likewise, parking in the rear has also been denied.

However, parking is available from two sources. The area in front of the location is 30 feet wide by approximately 76 feet deep. In addition parking is available to the left of the proposed location at the White Horse Garage. The White Horse Garage parking area is 56 feet wide and 70 feet deep. a depth of 70 feet. The parking on the left is available since the hours of operation of the proposed business are late night hours that do not conflict with the garage hours. Thus, when considered in light of the factors favoring granting the permit, the parking is not so inadequate as to warrant denying the permit.

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 warrant denying the beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 2001). Accordingly, Tucker'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 shall issue to Steve Tucker an on-premises beer and wine permit for use at 330 White Horse Road, Greenville, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: December 2, 2002

Columbia, South Carolina