SC Administrative Law Court Decisions

James Tucker, d/b/a James Quick Stop (Tucker) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit and a sale and consumption license (minibottle) for a restaurant at 3819 Farrow Road in Columbia, South Carolina. Protests were filed by Sargent Howard Hughes of the Richland County Sheriff's Office seeking to prevent DOR from granting the requested permit and license.

Not all of the requirements for obtaining a beer and wine permit or a minibottle license are disputed. Rather, the granting or denying of the permit and license turns upon the disputed matter of whether Tucker meets the requirements of the location being proper or suitable. ⁽¹⁾

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). In this case, the evidence requires denying the on-premises beer and wine permit and the sale and consumption minibottle license.

Does Tucker meet the requirements for an on-premises beer and wine permit and a sale and consumption minibottle license in light of an allegation that the location is improper?

1. Positions of Parties

Tucker asserts he meets the statutory requirements. DOR states the protests triggered a dispute on whether the location is proper or improper. The protestants assert the permit and license 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 January 28, 2002, Tucker filed an application with the Department of Revenue for an on-premises beer and wine permit and a minibottle license. The application is identified by DOR as AI # 32027247-8. 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 posting of notices, the Richland County Sheriff's Department through Sgt. Howard Hughes challenged the application and presented this controversy. The hearing for this dispute was held Monday, October 1, 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 permit and license will be utilized) is located at 3819 Farrow Road in Columbia, South Carolina. The business is a combination night club and restaurant with business hours of Monday through Saturday from 6:00 p.m. until 2:00 a.m.

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

In the past, 3819 Farrow Road has experienced activity requiring police involvement. For example, in 2000, Richland County police officers issued incident reports for three simple assaults with one of those involving alcohol. Further, more serious incidents consisted of two aggravated assaults in 1999, two in 2001 with at least one involving a weapon, and for 2002 at least one assault and battery involving a weapon. In addition, the area is a frequent location for loitering and the surrounding area is a site in which police have had problems with the improper consumption of alcohol in public forums. Finally, the area has required police involvement due to drug activity. For 2000, Richland County police records show at least one incident of heroin distribution; for 2001, one charge of marijuana possession and two incidents of heroin and cocaine possession; and for 2002, one charge of possession of cocaine and heroin.

The immediate area already has a presence of alcohol. The area is home to Louis D. Simmons American Legion Post #215, Dee's Party Shop, and at least two retail liquor stores. In addition, the area has other commercial businesses and is primarily commercial in nature.

3. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

A. Introduction

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. Likewise, a minibottle license must not only meet the distance measurements imposed by statute, but also meet the requirement that the location is a suitable location. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if specific statutory distance criteria of 500 feet or 300 feet are satisfied, a minibottle license is properly granted only if the location is a suitable location). Thus, for both the beer and wine permit and for the minibottle license, to grant the permit and license, the analysis must conclude that the location is proper. Further, for the minibottle license, the analysis must further conclude that the statutory prohibition distances are not violated.

Here, no evidence demonstrates that the proposed location is withing 500 feet (the location under review being in a non-municipal area) of any schools, playgrounds, or churches. See S.C. Code Ann § 61-6-120 (Supp. 2001). Thus, the only issue for both the beer and wine permit and the minibottle license is whether the location is a proper location.

B. Proper Location Factors for Beer and Wine Permits and Minibottle Licenses

In deciding if a location is proper, in general, consideration may be given to any factors that demonstrate the 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, proximity factors must be considered along with all other general factors bearing on the location.

1. Proximity Factors

Here, the evidence does not establish an improper proximity to residences. Rather, the area fronting Farrow 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.

2. Other Location Factors

However, granting or denying a beer and wine permit or a minibottle license does not turn solely on proximity. Rather, other relevant factors must be considered.

A significant factor is measuring the impact upon police enforcement based upon whether the area itself suggests a need will likely arise for police intervention since law enforcement officers have already had significant problems in the area. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Here, Richland County police records show both heroin and cocaine distribution and possession at this location in the past. Moreover, police testimony from officers responsible for the area confirms the existence of loitering in the area accompanied by the consumption of alcohol in improper public forums. Further, in 2000, Richland County police officers issued incident reports for three simple assaults (one of which involved alcohol). Finally, more serious incidents occurred in 1999, 2001, and 2002. In 1999, two aggravated assaults occurred, two more occurred in 2001 (one of which involved a weapon), and for 2002 at least one assault and battery occurred involving a weapon.

Indeed, a pertinent consideration is whether police have been summoned to the scene on prior occasions when licensed to another party. Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Here, the evidence shows that the police intervention as to assaults and drugs occurred at this same location when operated by a prior owner.

On the other hand, it is certainly true that a valid consideration is whether 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). Here, the area is significantly commercial. Likewise, 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). Indeed, other nearby businesses sell beer and wine and alcohol. However, when considered as a whole, the negative factors of the location presenting heroin, cocaine, physical assaults involving weapons, loitering, and public drinking prevent granting the permit and license.

C. Ultimate Conclusion on 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. While the proposed location is not within an improper proximity to residences, schools, churches, and playgrounds and is not within a "no license zone," on the whole, weighing all of the factors, the permit and license must be denied since the location presents heroin, cocaine, physical assaults involving weapons, loitering, and public drinking.

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

The on-premises beer and wine permit and a sale and consumption minibottle license for James Tucker, d/b/a James Quick Stop at the proposed location of 3819 Farrow Road, Columbia, South Carolina is DENIED.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 27, 2002

Columbia, South Carolina

1. At the hearing, DOR explained that no minibottle license could be granted since during the application process Tucker failed to produce a menu for his restaurant. However, at the close of the hearing, Tucker agreed to provide the restaurant's menu to DOR. Thus, the lack of a menu is no longer a controverted item.