SC Administrative Law Court Decisions

This matter comes before the Administrative Law Judge Division pursuant to the application of Joan E. Boiter, d/b/a Weisers Sandwich Shop, ("applicant") for a business sale and consumption ("mini-bottle") license (AI 98858) at 2713 Old Buncombe Road, Greenville, Greenville County, South Carolina ("location").

A hearing was held on November 29, 1994, at the Greenville County Courthouse, Greenville, South Carolina. Notice of the time, place and nature of the hearing was timely given to all parties including the protestants.

The application was protested by the Reverend Mark S. Roberts, Pastor, and Reverend Joseph D. Cadden, Associate Pastor, Morgan Memorial Baptist Church, Greenville, South Carolina., the Calvary First Baptist Church of Greenville, South Carolina and the Sans Souci Baptist Church of Greenville. The respondents objected to granting the license for two reasons; the location being too close to a church and not being primarily engaged in the preparation and service of meals. None of the protestants appeared at the hearing.

The application request by the petitioner is denied.

EXHIBITS

Without objection, copies of those portions of the department's file set forth hereafter were made a part of the record:

1. application by petitioner for retail liquor license with rental agreement

2. publication notices in The Greenville News for the license

3. surety bond

4. sketch of the proposed location

5. investigative report by SLED dated July 26, 1994, July 29, 1994, October 27, 1994, and November 11, 1994

6. protest by Reverend Mark Roberts and Reverend Joseph D. Cadden

7. protest by Calvary Baptist First Baptist Church, Greenville, South Carolina

8. protest by Sans Souci Baptist Church, Greenville, South Carolina

9. criminal history report from South Carolina Law Enforcement Division ("SLED")

10. correspondence between petitioner and respondent

11. petitions from members of Morgan Memorial Baptist Church and Sans Souci Baptist Church

No exhibits were introduced or proffered at the hearing.

SUMMARY OF THE EVIDENCE

Petitioner/applicant testified that all information contained in her license application was correct, that she is forty-nine (49) years of age, has lived in Greenville, South Carolina all her life, formerly worked at Kemet Electronics and subsequently for C.A. Hughes, Inc., a company owned by Feddie Collins' daughter, where she operated video poker rooms at service station locations. She stated she is the sole owner of her business located at 2713 Old Buncombe Road, Greenville, South Carolina, opening it on November 20, 1993. She stated that it is a lounge, not a restaurant, which has jukeboxes, video poker machines and pool tables therein and it is primarily an amusement location.

As to the interior of the location, she stated there is no separate kitchen, but at one end of the bar there is a pizza oven, microwave and an ice box. She stated that no class A restaurant license has been issued. Also, she stated that there is no food preparation at the location.

The applicant testified that she presently holds a beer and wine permit for on-premise consumption which is the only permit/license the previous owner of some twelve (12) years had while operating a similar establishment at the location.

She stated that the location is located outside any municipal or city limits and is in a mixed residential and commercial setting. Under cross-examination about the closeness of the location to the North Hills Community Church, she stated the church is a "temporary church" and the church building was not being used as a church when she filed the application. However, she acknowledged that there was a church meeting regularly in the building when she opened her business and that presently the North Hills Community Church has regular worship services on Sundays and Wednesdays.

David Gladden, a SLED agent assigned to the respondent to investigate alcohol permit requests, testified about his investigation concerning this application. He stated that the location is in a neighborhood that's pretty much residential with some commercial mixed in. He stated that the distance in feet from the location's front door and the closest entrance to the North Hills Community Church is 202 feet.

By a preponderance of the evidence, I make the following findings:

1. This Division has personal and subject matter jurisdiction.

2. The applicant is seeking a sale and consumption ("mini-bottle") license for a lounge located at 2713 Old Buncombe Road, Greenville, Greenville County, South Carolina.

3. The applicant is of good moral character.

4. The applicant has been a legal resident of South Carolina for over thirty days and maintained her principal place of abode in South Carolina for over thirty days.

5. The applicant has never had a beer and wine permit or mini-bottle license revoked.

6. Notice of the application has appeared at least once a week for three (3) consecutive weeks in The Greenville News, a newspaper of general circulation in the local area where the applicant proposes to engage in business.

7. Notice of the application has been given by displaying a sign for a minimum of fifteen (15) days at the site of the proposed location.

8. The applicant intends to operate a lounge at the location.

9. The applicant is over twenty-one (21) years of age.

10. There are no schools or playgrounds in close proximity to the location. Also, Morgan Memorial Baptist Church, Calvary First Baptist Church and Sans Souci Baptist Church are approximately 3/10 mile, 2/10 mile and 2/10 mile respectively in distance from the location. However, there is a distance of 202 feet from the front door of the location to the front door of the North Hills Community Church computed by following the shortest route of ordinary pedestrian or vehicular traffic along Old Buncombe Road.

11. The proposed location is not within any municipal boundaries, located in a mixed commercial and residential area.

12. No class A restaurant license has been issued to the applicant.

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

1. S.C.Code Ann. § 1-23-600 (Supp. 1993) grants jurisdiction to the Administrative Law Judge Division to hear contested cases under the Administrative Procedures Act.

2. S.C.Code Ann. § 61-1-55 (Supp. 1993) grants to the Administrative Law Judge Division the powers, duties and responsibilities as a hearing officer in protested and contested matters governing alcoholic beverages, beer and wine.

3. Pursuant to S.C. Code Ann. § 1-23-630 (Supp. 1993) an administrative law judge has the power to issue those remedial writs necessary to give effect to his jurisdiction.

4. S.C. Code Ann. § 61-5-50 sets forth the requirements for the issuance of a sale and consumption ("mini-bottle") license.

5. S.C. Code Ann. § 61-3-420 defines persons ineligible for the granting of a license.

6. S.C. Ann. § 61-3-42e requires an applicant seeking a license to present to the Department of Revenue and Taxation a signed statement both from the Department and the Internal Revenue Service showing the applicant doesn't owe the state or federal government delinquent taxes, penalties or interest.

7. The Department is authorized to issue retail liquor licenses under the provisions of S.C. Code Ann. § 61-3-410(3) (Supp. 1993).

8. S.C. Code Ann. § 61-3-440 (Supp. 1993) prohibits the issuance of a liquor license for on-premise consumption to an applicant if the place of business (location), if located within a municipality, is within three-hundred feet (300') of a church, school or playground.

9. 23 S.C. Code Ann. Regs 7-11 (1976) provides:

With respect to a church or a school, the distance shall be measured from the entrance to the place of business by following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare to the nearest point of entrance to the grounds of the church or school, or any building in which religious services or school classes are held, whichever is closer. The Alcoholic Beverage Control Commission has determined that the grounds in use as part of the church or school is restricted to the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or buildings and does not extend to the grounds surrounding the church which may be used for beautification, cemetaries, or any purpose other than such part of the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings.

Only one entrance to the grounds of a church or school shall be considered, to wit: the entrance to the grounds nearest an entrance to the church or school building.

Where no fence is involved, the nearest entrance to the grounds shall be in a straight line from the public thoroughfare to the nearest door.

The nearest point of the grounds in use as part of a playground shall be limited to the grounds in use as a playground the grounds necessary for ingress or egress to such grounds from the public thoroughfare.

10. 23 S.C. Code Ann. Regs. 7-55 (1976) incorporates verbatim language of R7-11, with the addition of an introductory paragraph.

11. R7-11 and R7-55 do not impermissibly conflict with § 61-3-440. 1990 Op. S.C. Atty. Gen. No. 90-4 at 127.

12. No schools or playgrounds are within the prescribed proximity to render the proposed location unsuitable.

13. Neither Morgan Memorial Baptist Church, Calvary First Baptist Church nor Sans Souci Baptist Church are within the prescribed proximity to render the proposed location unsuitable. However, it is concluded that the distance of two-hundred and two feet (202') between the front door of the location and the front door of the North Hills Community Church as computed by following the shortest route or ordinary pedestrian or vehicular traffic along Old Buncombe Road violates the five-hundred feet (500') limitation of S.C. Code § 61-3-440(1) and thus prohibits the issuance and granting of the license.

14. It is further concluded that the applicant is not conducting at the location a business bona fide engaged primarily and substantially in the preparation and serving of meals as required by S.C. Code Ann. § 61-5-50(1), § 61-5-10(1) and R7-19.

15. Little weight as evidence was given to the protests and petitions from the ministers and members of both Morgan Memorial Baptist Church and Sans Souci Baptist Church in that the individual w