SC Administrative Law Court Decisions

Lena B. Stevenson (Stevenson) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine and a sale and consumption license (minibottle) for a nonprofit private club at 2210 Decker Blvd. in Columbia, South Carolina. Protests were filed by Joel Lourie, Frank Yetman, and Kaisha Williams, all of whom seek to prevent DOR from granting the requested permit and license.

In this matter, not all of the requirements for obtaining a beer and wine permit or a sale and consumption license (minibottle) are disputed. Rather, the granting or denying of the permit and license turns upon the disputed matter of whether Stevenson meets the requirements of the location being proper or suitable.

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 granting the on-premises beer and wine permit and the sale and consumption minibottle license with a restriction.

Does Stevenson 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

Stevenson asserts she meets the statutory requirements. DOR states it would have granted the permit and license but for the filing of protests asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. 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 June 24, 2002, Stevenson filed an application with the Department of Revenue for an on-premises beer and wine permit and a sale and consumption minibottle license. The application is identified by DOR as AI # 32028579-4. The proposed business (and the place where the beer and wine permit and the minibottle license will be utilized) is located at 2210 Decker Blvd. in Columbia, South Carolina. The activity to be conducted at the location is that of a non-profit private club operating with daily business hours of from 9:00 p.m. until 2:00 a.m. The club will provide seating for 100.

Following the notices to the public, Joel Lourie, Frank Yetman, and Kaisha Williams challenged the application giving rise to the current controversy. That controversy was heard on Thursday, October 31, 2002, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

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. While the proposed location fronts on a highly commercial street, Decker Blvd., a residential area known as Woodfield Subdivision is behind Decker Blvd. Also within the surrounding area is a church, Independent Baptist Church, at a distance of .4 of a mile from the proposed location. The church is not visible from the proposed location, and no other churches are in the immediate vicinity.

The closest public school, Richland Northeast High School, is .5 of a mile from the location. A private day care center, Sunshine House Day Care, is approximately 471 feet from the proposed location. Attached to the day care center is the Day Care's private playground approximately 415 feet from the proposed location.

2. Other Factors

The area near 2210 Decker Blvd. has experienced some criminal activity. Records of law enforcement officials show that for the five years of 1998 through 2002, twelve incidents have been noted at 2210 Decker Blvd. Of those twelve incidents, seven were crimes against property, two were simple assaults, one was a stolen check, one was simple possession of marijuana, and one was an altercation. No persuasive evidence links the incidents to the consumption of alcohol.

In addition, for the same five year period of 1998 through 2002, the area from 1945 Decker Blvd. to 2300 Decker Blvd. has been the source of police intervention. For example, during that five year period, police records show 382 incidents. However, given the highly commercial nature of the area, it is not surprising to find that the majority of the incidents result from business related crimes such as writing bad checks, petty theft due to shoplifting, forgery, etc.

In the three block area addressed above, police have had occasion to find individuals appearing to be consuming alcohol or beer in public forums. On such occasions, police have typically not issued a citation but have instead asked the individuals to pour out their drinks. Such a practice appears to be a successful technique since for the five year period of 1998 through 2002, only four incidents charged individuals with alcohol violations. Further, of those four, none were at 2210 Decker Blvd.

As for drug activity in the immediate vicinity, law enforcement records show some presence in the area. While no such activity is desirable, the incident reports show drug activity is not predominate. For example, with approximately 10 incidents involving marijuana use or possession for the five year period of 1998 through 2002, the incidents reflect an average of only two violations a year.

Finally, as to law enforcement concerns, no evidence presented establishes a danger of traffic accidents due to the proposed location. The proposed location is accessed via Decker Blvd. near the intersection of Faraway Dr. and Crossfield. Decker is a four lane highway which is a major thoroughfare for the area. Thus, traffic ingress and egress do not present a traffic hazard.

In reviewing the immediate vicinity as a whole, the area has numerous beer and wine permits and alcohol licenses. Indeed, an ABC Package Store is next door to the proposed location. Further, the immediate area has at least 6 locations that hold either a beer and wine permit or a liquor license or hold both a permit and a license.

As to the commercial nature of the area, there is no dispute. The area is highly commercial and is home to a string of businesses in a strip mall retail area. The most immediate businesses to the proposed location are the Express Check Advance, the Filipino Oriental Grocery, Mang Thomas Barbeque & Seafood, Decker Alterations, Clifton Seafood, and Hess gas station. Overall, the area is predominantly commercial in nature.

In the past, the location has been operated with a beer and wine permit and a minibottle license. In the late 1970's the location operated as the Red Carpet Lounge and generated a significant degree of problems. However, under new ownership, the location also operated in 1997 to 1998. During that period the location operated with a private security force on the premises. No significant problems were created during the 1997 to 1998 period of operation.

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 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.

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: Introduction

In reviewing an application for a beer and wine permit and for a minibottle license, two "proximity" statutes are pertinent. One statute covers beer and wine permits while a second addresses only liquor licenses.

For a beer and wine permit, the proximity to residences, schools, playgrounds, and churches is a mandatory consideration. S.C. Code Ann. § 61-4-520(7) (Supp. 2001). Indeed, for a beer and wine permit, the sole factor of an improper proximity to any of the protected institutions of residences, schools, playgrounds, and churches 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). However, no absolute prohibition measurements are set by the beer and wine statutes. Rather, deciding whether the proximity is improper must be made on a case by case basis resting upon the peculiar facts of each permit request.

On the other hand, a two step analysis is needed for reviewing a minibottle license. First, an absolute "no license zone" exists for schools, playgrounds, and churches within 300 feet (if in a municipal area) and 500 feet (if in a non-municipal area) of a proposed location. See S.C. Code Ann § 61-6-120 (Supp. 2001) ("[DOR] shall not grant or issue any license provided for in this article or Article 7 of this chapter, if the place of business is within three hundred feet of any church, school, or playground situated within a municipality or within five hundred feet of any church, school, or playground situated outside of a municipality."). Moreover, the law is well settled that the 300 and 500 feet distances apply only to liquor licenses, not to beer and wine permits. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301, 303 (1972):

The legislature has apparently not so far seen fit to lay down any guidelines or standards with respect to the proximity of the holder of a beer and wine license to churches, schools, playgrounds, etc., and prior to 1960 no proximity guidelines had been established for the guidance of the Commission in granting retail liquor licenses. With respect, however, to liquor licenses, the legislature in 1960 did enact what is now Code Sec. 4--33.1. By reference thereto it will be seen that a liquor license may not be granted for a location in a municipality within three hundred feet of a church, school, or playground, the distance to be computed by the shortest route of ordinary travel along the public thoroughfare.

Thus, an issue to be answered for a minibottle license in a non-municipal area is whether the proposed location is within 500 feet of a church, school, or playground.

However, case law has established a second proximity test for a liquor license. The second test applies even if the proposed location is beyond the 500 foot "no license zone." The second test asks whether the proposed location is suitable under a fact-based case by case analysis. Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even if specific statutory distance criteria are satisfied, a minibottle license is properly granted only if the location is a suitable location).

Accordingly, for both the beer and wine permit and the minibottle license, the issue is whether the facts demonstrate that the proposed location is within an improper proximity to residences, schools, playgrounds, and churches (see S.C. Code Ann. § 61-4-520(7) (Supp. 2001). However, for the minibottle license only, the second issue is whether the proposed location is within 500 feet of a school, playground, or church (see S.C. Code Ann § 61-6-120) (Supp. 2001).

2. Proximity Factors: Application

In the instant case, the evidence does not establish an improper proximity to residences, schools, playgrounds, and churches so as to warrant denying the beer and wine permit or the minibottle license.

a. Residences

As to residences, the closest significant grouping of residences is behind Decker Blvd in the Woodfield Subdivision. The evidence establishes that during the 1970's some problems resulted from the current location when that location was operated as the Red Carpet Lounge. However, that business no longer exists. Instead, much later, a new business began operating during 1997 to 1998 with a beer and wine permit and minibottle license. For that latter period, a local resident in Woodfield who lives four houses down experienced no problems resulting from the location. Accordingly, in the instant case, the evidence does not persuasively show an improper proximity to residences. Rather, recent past history shows a coexistence of the location with the surrounding area.

b. Schools

In this case, neither the proximity to Richland Northeast High School nor the proximity to the day care center allows denying the beer and wine permit or the minibottle license.

Richland Northeast High School is .5 of a mile from the proposed location. Within that distance, other beer and wine permits as well as minibottle licenses are already in use. Thus, other permitted and licensed locations are closer to the school than is the instant applicant. In addition, while education and extracurricular activities occur at the high school after normal school hours, the vast majority of the open hours of the proposed location will not coincide with the open hours of the high school. Thus, the degree of potential conflict of activities is lessened. Overall, given the .5 of a mile distance, the current presence of closer existing permits and licenses, and the lessened degree of potentially conflicting hours of activities, the proximity to the high school is not sufficient to deny the permit or license.

Likewise, a review of the facts relevant to the distance to the day care center (approximately 471 feet from the proposed location) does not allow the denial of the beer and wine permit or the minibottle license. Here, the proposed location is on the opposite side of Decker Blvd. than is the day care center. Thus, Decker Blvd., a four lane highway, acts as a significant separation barrier between the two entities. Moreover, the day care is not only on the opposite side of the street but also is separated from the proposed location by the intersection of Decker Blvd. and Crossfield Road. Further, in addition to the separation in distance, a separation in time also exists. The day care is typically closed before the proposed location's hours of operation. Indeed, the proposed location will have very late hours not likely to interfere with the activities of the day care center. Thus, when considering the facts as a whole, no subjective proximity factors warrant denying the beer and wine permit or the minibottle license.

c. Playground

The distance to the playground of the day care is approximately 415 feet from the proposed location. For much the same reasons as discussed above as to the day care center itself, the presence of the playground is not a sufficient basis to deny the beer and wine permit or the minibottle license. As identified above, the proposed location is on the opposite side of Decker Blvd., a four lane separator between the two locations. Further, the playground also has an additional separation due to the intersection of Decker Blvd. and Crossfield Road. Finally, given the proposed location's late hours of operation, the likelihood for interference with the activities of the day care playground are lessened. Thus, when considering the facts as a whole, no subjective proximity factors warrant denying the beer and wine permit or the minibottle license due to the playground.

d. Churches

The closest church, Independent Baptist Church, is at a distance of .4 of a mile from the proposed location. No evidence establishes any interference caused by the proposed location and the worship activities of the church. Thus, no improper proximity is presented here for the beer and wine permit or the minibottle license.

3. Other Location Factors

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. Law Enforcement

A proper consideration for reviewing a beer and wine permit and a consumption license is examining the impact granting the permit will have upon law enforcement. For example, evidence that granting the permit will place a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). In particular, one measure of the strain is evidence of insufficient police to cover the location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

Here, the evidence establishes that law enforcement in the immediate area is both highly effective and highly vigilant. Indeed, police incident reports and officer testimony demonstrate a continuing coverage for the immediate area and no evidence demonstrates an inability to provide adequate police coverage to the area of the proposed location.

A relevant matter impacting police enforcement is 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, especially if the problems involve alcohol 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 evidence establishes that over a five year period from 1998 to 2002, police have on occasion found individuals appearing to be consuming alcohol or beer in public. Police have typically not issued a citation but have instead asked the individuals to pour out their drinks. Such a practice appears to be a successful technique for controlling the matter since for the five year period of 1998 through 2002 only four police incidents have charged individuals with alcohol violations. Further, of those four, none were at 2210 Decker Blvd., the proposed location.

Finally, during the five year period of 1998 to 2002, police records show 382 incidents. However, the majority of the incidents results from business related crimes such as writing bad checks, petty theft due to shoplifting, forgery, etc. While such activity is not desirable, business related crimes are more expected in a highly commercial retail area such as that of the proposed location. Thus, when considered as a whole, the area does not establish a high likelihood that police intervention will be needed due to granting the permit and license to the proposed location.

Law enforcement records do show the presence of some drug activity in the vicinity. However, while no drug activity is the desired goal, the incident reports demonstrate drug activity is not a predominate crime in the area. For example, approximately 10 incidents involved marijuana use or possession for the five year period of 1998 through 2002. Such gives an average of only two violations a year. Give the high level of retail commercial activity, such is not so extensive as to require denying the requested permit and license.

In deciding the impact upon law enforcement, 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 in the 1970's problems developed at the location. However, during the recent operation from 1997 to 1998, police intervention was not a significant factor since the location provided its own security guards during operating hours. Thus, if the same practice of requiring security at the proposed location were continued under the new operation, the need for likely police intervention would be lessened.

Consideration can be given to the extent to which the highway traffic presents a location that is 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, no evidence shows that the location has had a past history of traffic accidents. Further, no evidence show that the ingress and egress to the location will present a danger of accidents.

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 highly commercial and is home to a string of businesses in a strip mall retail area. The most immediate businesses to the proposed location are the Express Check Advance, the Filipino Oriental Grocery, Mang Thomas Barbeque & Seafood, Decker Alterations, Clifton Seafood, and Hess gas station. Overall, the area is predominantly commercial in nature.

Finally, 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). In reviewing the immediate vicinity as a whole, the area has numerous beer and wine permits and alcohol licenses. Indeed, an ABC Package Store is next door to the proposed location. Further, the immediate area has at least 6 locations that hold either a beer and wine permit or a liquor license or hold both a permit and a license.

C. Statutory Distance Measurements for Minibottle Licenses

As previously stated, the statutorily imposed "no license zone" of 500 feet via § 61-6-120 does not apply to beer and wine permits. See Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972) (measurement of 500 feet applicable to liquor licenses but not to beer and wine permits). Thus, the measurements of 471 feet to the day care center and 415 feet to the playground are relevant only to the minibottle license. In this case, the evidence establishes that the day care center and playground are not within the prohibition rule of S.C. Code § 61-6-120.

1. Schools

Under the statute, a "school" is "an establishment, . . . where the usual processes of education are usually conducted." S.C. Code Ann. § 61-6-120(A)(2) (Supp. 2001). However, it is not enough to merely establish that teaching occurs at the location; rather the predominant role of the location must be education. See e.g. K & K Enterprises, Inc. v. Pennsylvania Liquor Control Bd., 602 A.2d 476, 480 (Pa. 1990) (where a day care center was not a school since the primary role of the center was "child care in the absence of a parent or parents" and such was concluded even though the court found "[u]ndoubtedly, this day care center teaches children."). Moreover, a "school" is most likely not present if the activity provided at the establishment is primarily recreational instead of educational. See Surowitz v. City of Pontiac, 132 N.W.2d 628 (Mich. 1965) (where the court commented that a "school" may not be present if the activities "were not offered in contemplation of achieving mastery of a particular vocation, but were recreational in their outlook."). Indeed, even a "dance studio" where obviously significant "learning" is taking place has been traditionally held not to be an establishment where the usual processes of education are conducted. See 45 Am Jur Intoxicating Liquors § 142 (where "so-called schools for . . . giving instruction in dancing . . ." did not qualify as a school for purposes of establishing distances from liquor license locations).

Thus, in the instant case, the "day care center" is not a school within the meaning of S.C. Code Ann. § 61-6-120 (Supp. 2001). Rather, the usual processes of education are not being conducted due to the fact that the primary purpose of the facility is (as the name "day care"implies) to provide quality child care in the absence of a parent. Accordingly, the 500 foot prohibition is inapplicable.

2. Playgrounds

A similar result is reached for the playground of the day care center. Under § 61-6-120(A)(3) a "playground" is "a place . . . which is provided by the public or members of a community for recreation." Here, the evidence is undisputed that the playground is a private playground provided by the day care center for its clients and is not one provided by the public. Accordingly, the 500 foot prohibition does not apply to the day care's playground.

D. 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. The proposed location is not within an improper proximity to residences, schools, churches, and playgrounds. Further, the proposed location is not within a "no license zone." Finally, on the whole, weighing all other location factors requires granting the permit and licence so long as the permit and license are restricted to require security guards on the premises during all hours the location is open to its members.

When required, it is appropriate to impose restrictions. The granting of a beer and wine permit and the granting of a min-bottle license is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 2001); 23 S.C. Code Regs. 7-88 (1976).

Here, the surrounding community is mindful of problems created in the 1970's by the unsupervised operation of a former owner. Indeed, the operation of the location during 1997 through 1998 appears to have presented very little problem to the community since the operation employed security guards at the location during hours of operation. In the instant case, to attempt to minimize the possibility of inappropriate behavior at the location, the beer and wine permit and the minibottle license will be restricted so as to require the hiring of security guards who must be present on the premises of the location during all hours that the location is open to its members.

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

DOR is ordered to grant Lena B. Stevenson's application for an on-premises beer and wine permit and a sale and consumption minibottle license for a nonprofit private club at 2210 Decker Blvd., Columbia, South Carolina only upon DOR and Stevenson agreeing to the following restriction upon the permit: security guards must be present at the location during all hours that the location is open to its members. This restriction shall become a part of the permit and any violation of the restriction shall be subject to enforcement in the same manner as any comparable violation of the permit itself.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 19, 2002

Columbia, South Carolina