ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Samuel Green (Green) filed with the South Carolina Department of Revenue (DOR), a renewal application for an on-premises beer and wine permit for 2341 Pendleton Street, Columbia, South Carolina. A protest was filed by Langston
Powell, Powell Investments, LLC (Powell) seeking to prevent DOR from granting the renewal application.
In this matter, not all of the requirements for obtaining an on-premises beer and wine permit are disputed. Rather, the
granting or denying of the permit turns upon the disputed matter of whether Green meets the requirements of the location
being proper.
The protest was 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 of the relevant factors impacting location requires denying the on-premises beer and wine
permit.
II. Issue
Does Green meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is
improper?
III. Analysis
Proper Location
1. Positions of Parties
Green asserts he meets the statutory requirements and that he is "grandfathered" since he has been operating at this same
location for 33 years. DOR states it would have granted the permit but for the filing of the protest asserting the location is
improper. Accordingly, DOR awaits the outcome of this hearing. Powell asserts the permit should be denied since the
location is not suitable for an on-premises beer and wine permit.
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 July 16, 2002, Green filed a renewal application with the Department of Revenue for an on-premises beer and
wine which is utilized in a business located at 2341 Pendleton Street, Columbia, SC. The owner describes the business as
one that sells "food and beer." The hours are Monday through Saturday, 9:00 a.m. until 9:00 p.m. with the business closed
on Sunday.
DOR identified the application as AI # 32009514-2 and asked SLED to investigate the location. SLED's investigation
consisted of drawing a map generally depicting the immediate area.
B. Specific Facts of Location
The current location has been operating since at least 1972 with a beer and wine permit. While that operation includes an
on-premises permit, the location does not have a parking lot but instead relies upon on-street parking. No other commercial
activity is in the immediate area nor is there any other beer and wine permit in the area.
In recent years, the 2300 block of Pendleton Street, a block that includes the subject location of 2341 Pendleton Street, has
been a source of extensive police involvement from the City of Columbia. For example, for records available for the first
seven months of 2002, six arrests were made involving drunkenness or drinking in public, three involving marijuana, and
three involving possession of firearms or possession of unlawful weapons. In addition, during those same seven months,
on four different occasions police investigations resulted in the serving of outstanding bench warrants on individuals found
in the area. At least six violations were written during 2001 with one of those charges being a shooting resulting in a
charge of assault and battery with intent to kill.
In addition to police arrests, eye witness testimony establishes prostitution in the immediate area with loitering being a
common occurrence. Further, eye witness testimony establishes that on a frequent basis vehicles stop on the street for the
purpose of exchanging money for plastic bags containing unidentified substances.
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); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). No permit may be "grandfathered" so as not to be subject
to the requirement of providing a proper location.
However, as to "grandfathering," while the normal rule under § 61-4-520(7) is that the proximity of a location to residences
is a factor by itself that warrants denying a renewal (see William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d
653 (1991) and Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992)), that statute holds that the proximity to
residences restriction "does not apply to locations licensed before April 21, 1986." Here, the subject location has been
licensed since at least 1972. Thus, the permit may not be (and is not here) denied based on the location's proximity to
residences. Rather, other factors warrant denying the renewal of the permit.
2. Other Location Factors
A proper consideration for reviewing a beer and wine permit is examining the need for likely police intervention. For
example, a factor weighing against granting a permit is having the permit in an area that has been a source of law
enforcement problems. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.
1984). In a similar vein, a relevant consideration is whether the law enforcement has already had significant problems with
public intoxication 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 facts show that the area is a source of extensive police involvement from the City of Columbia. Drunkenness is a
common charge written by police. Further, while not resulting in arrests, eye witness testimony also establishes suspicious
activity of frequent vehicles stopping on the street for the purpose of exchanging money for plastic bags containing
unidentified substances. Indeed, recent marijuana arrests have been made in the area along with arrests involving
possession of firearms or possession of unlawful weapons. In fact, during 2001 a shooting in the immediate area resulted in
a charge of assault and battery with intent to kill. Finally, loitering and prostitution in the area is an on-going problem.
In addition to the crime in the area and the need for police intervention, the location of commercial activity is relevant. A
consideration weighing against granting a permit is the lack of other commercial activity in the area. 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, no other commercial activity is in the immediate area.
Even as to the commercial activity at the current location, 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, despite having an on-premises permit, the location has no parking lot and thus must
rely upon on street parking. Such is not a favorable factor for renewing a permit.
Similar to the lack of presence of other commercial activities, within limits, a permit may be more appropriate for an area
that already has other beer and wine permits or alcohol licenses. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
Here, the current renewal is the only beer and wine permit in the immediate area.
Certainly, some consideration must be given to the long term operation of the location. The relevant consideration is
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). Here, the evidence shows that the location is less suitable today than it has been in
the past. Indeed, the area is a place of extensive crime marked by drug activity, illegal weapons, shootings, prostitution,
loitering, and frequent public drunkenness. Thus, the present operation is far less suitable than the operations that may
have taken place in the past.
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 no longer a proper location for an on-premises beer and wine permit. S.C. Code Ann.
§ 61-4-520(7) (Supp. 2001).
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR is to deny Samuel Green's renewal application for an on-premises beer and wine permit at 2341 Pendleton Street,
Columbia, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: October 1, 2002
Columbia, South Carolina |
