ORDERS:
ORDER AND DECISION
This matter is before the Division pursuant to the application
of Susan Gail Peace for an on-premises beer and wine permit at
3816A South Main Street, Anderson, South Carolina.
A hearing was held on May 3, 1994. From the testimony and
evidence presented at that hearing, I make the following:
FINDINGS OF FACT
1. Susan Gail Peace is currently the holder of an off-premises beer and wine permit at Peace's Cafe, 3816A Main Street,
Anderson. She is applying for an on-premises beer and wine permit
for that location.
2. On October 10, 1991, the Alcoholic Beverage Control
Commission denied the applicant an on-premises beer and wine permit
for the same location on the basis that the location was not a
suitable one.
3. On-premises beer and wine permits have been denied
several times for this location.
4. The area surrounding the location is primarily
residential. There are several residences located next to the
location and behind the location are several trailer homes and
other houses. There are some commercial establishments within
close proximity of the location including a few used car and auto
service businesses.
5. Homeland Park Elementary School is located about one-half
mile from this location and the street in front of the location is
used by the children to walk or ride bicycles to and from school.
6. Edshore Ambulance Service has an emergency medical
service sub-station located on South Main Street only one block
away from the location. Emergency medical personnel respond to
calls from this station.
7. There are two churches within two-tenths of a mile from
the location.
8. There are seven convenience stores within a one-half mile
radius of the location that sell beer and wine for off-premises
consumption. There are four locations within the same distance
that are licensed for on-premises consumption of beer and wine or
alcoholic liquors or both.
9. The Anderson County Sheriff's Department has limited
funds for personnel and are not able to offer extra police
protection for the area. The average response time is twenty-seven
minutes.
10. The applicant is over twenty-one years of age.
11. The applicant is a citizen of South Carolina and has
maintained her principal place of abode in this state for over one
year.
12. The applicant has not had a permit revoked within the two
years preceding the date of the application.
13. Notice was properly posted and published in a newspaper
of general circulation in Anderson County.
14. The file of the Department of Revenue and Taxation
(Department) was made a part of the record in this matter without
objection. A copy is substituted for the original which is
returned to the Department.
CONCLUSIONS OF LAW
The Administrative Law Judge Division is vested with the
powers, duties and responsibilities exercised by the former
Alcoholic Beverage Control Commission and hearing officers pursuant
to Chapter 23 of Title 1. S.C. Code of Laws § 61-1-55 (Cum. Supp.
1993). S.C. Code § 61-9-320 (Cum. Supp. 1993) provides the
statutory requirements for this issuance of beer and wine permits.
It states in part:
No permit authorizing the sale of beer or wine
may be issued unless:
...
(6) The location of the proposed place of
business of the applicant is in the opinion of
the department a proper one. The department
may consider among other factors, as
indications of unsuitable location, the
proximity to residences, schools, playgrounds,
and churches. This item does not apply to
locations licensed before its effective date.
S.C. Code § 61-9-320 (6) (Cum. Supp. 1993).
Although "proper location" is not statutorily defined, "rather
broad discretion is vested in the Commission in determining the
fitness or suitability of a particular location." Fast Stops, Inc.
v. Ingram, 276 S.C. 593, 281 S.E.2d 181 (S.C. 1981). This
determination of suitability is not solely a function of geography,
but involves an infinite variety of considerations related to the
nature and operation of the proposed business and its impact upon
the community where it is to be situated. Kearney v. Allen, 287
S.C. 324, 338 S.E.2d 335 (S.C. 1985); Schudel v. S.C. ABC
Commission, 276 S.C. 138, 276 S.E.2d 308 (S.C. 1981).
This community called Homeland Park is primarily a residential
area with a few auto repair shops in the immediate vicinity. There
are several other businesses within a close radius of the location
that are licensed to sell beverages with an alcoholic content that
are readily accessible to this neighborhood. The photographs
introduced into evidence depict the location within a few feet of
residences. The residents do not oppose the sale of beer and wine
for off-premise consumption but object to the on-premises sale and
consumption. The location is near an emergency medical sub-station
which answers calls and is concerned about the safety of its
personnel and the surrounding community. The evidence also showed
that the Anderson County Sheriff's Department would not be able to
adequately provide manpower for the area if there is an increase in
disturbances to the area.
In addition, proximity of a location to a church, school,
playground, or residence is a proper ground, by itself, on which
the location may be found unsuitable for a permit to sell beer and
wine. Byers v. S.C. ABC Commission, 305 S.C. 243, 401 S.E.2d 653
(S.C. 1991). There are two churches and a school within one-half
mile of the location. The elementary school has expressed concerns
for the safety of its students travelling on the same street as the
location.
Although the applicant meets the other statutory requirements
to hold a license, based upon the foregoing findings of fact and
conclusions of law relating to the location an on-premise beer and
wine permit should not be issued to this location. Therefore,
IT IS ORDERED, that the application of Susan Gail Peace, d/b/a
Peace's Cafe is DENIED.
________________________
ALISON RENEE LEE
Administrative Law Judge
May __, 1994
Columbia, South Carolina |
