ORDERS:
ORDER
I. Introduction
On August 14, 1995, a hearing was held in this matter concerning an application for a beer and wine
permit for a proposed location at 110 Buckley Street, Orangeburg, South Carolina. By an Order
issued August 18, 1995, the permit request was denied. On August 22, 1995, a Motion for
Reconsideration was filed by A. Stanley Brown (Brown) with such Motion being granted on August
23, 1995. The hearing on the reconsideration was held on August 30, 1995, with the issue and
evidence limited to the proximity of the proposed location to Felton Laboratory School.
The Order of August 18, 1995, is vacated and withdrawn in its entirety with this Order of September
1, 1995, issued as the final decision in this matter.
II. Statement of the Case
The Petitioner, A. Stanley Brown (Brown) of Mr. Wings, Inc. filed with the South Carolina
Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer
and wine permit for 110 Buckley Street, Orangeburg, South Carolina. Several members of the
community filed a protest seeking to prevent DOR from granting the license. A hearing on the
application was required since "[n]o application for [a] beer and wine permit will be approved by the
Alcohol Beverage Control Commission [now DOR] unless a hearing is held in the matter when the
issuance of the permit is protested by one or more persons." 23 S.C. Code Ann. Regs. 7-90 (Supp.
1994). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the hearing
required by Regs. 7-90 with such hearing held under the contested case provisions of S. C. Code Ann.
§§1-23-600(B) and 1-23-310 (Supp. 1994). After considering all of the evidence and relevant
factors, the permit is granted.
Any issues raised in the proceedings or hearing of this case but not addressed in this Order are
deemed denied. ALJD Rule 29(B). Further, the filing of a motion for reconsideration is not a
prerequisite to any party filing a notice of appeal of this Order. ALJD Rule 29(C).
III. Issues
Does Brown meet the statutory requirements of S. C. Code Ann. §61-9-320 (Supp. 1994) by
demonstrating he possesses good moral character, has been a legal resident of the United States and
South Carolina for 30 days, has held a principal place of abode in South Carolina for 30 days prior
to filing the application, has not had a beer or wine permit revoked within two years of the date of
the current application, is twenty-one or older, will utilize the permit at a proposed location that is
proper, and gave notice of the application by way of required advertising by newspaper and display
of signs?
IV. Analysis
1. Positions of Parties:
Brown asserts he meets all the requirements of the statute. He argues he possesses good moral
character, has been, for at least 30 days prior to filing the application, a legal resident of the United
States and South Carolina, has held a principal place of abode in South Carolina for at least 30 days
prior to filing the application, has not had a beer or wine permit revoked within two years of the date
of the current application, is twenty-one or older, will utilize the permit at a proposed location that
is proper, and gave notice of the application by way of required advertising by newspaper and display
of signs.
DOR states that due to the protest, no permit could be granted and it awaits the outcome of this
hearing. Both Brown and DOR assert the word "school" in S.C. Code Ann. §61-9-320 does not
include a college or university and thus the proximity of the proposed location to South Carolina
State University is of no legal significance.
The protestants assert only one basis for denial of the permit: that the proposed location is not proper.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
a. General:
1. In April 1995, Brown filed an application with the DOR for an on-premises beer and
wine permit.
2. The application is identified by DOR as AI # 102812.
3. The business and the place where the beer and wine permit will be utilized is 110
Buckley Street, Orangeburg, South Carolina.
4. The business has been operating for over two years and will continue to be operated
by a corporation named Mr. Wings, Inc.
5. Brown is the president of Mr. Wings, Inc. and owns 100% of the stock.
6. The proposed location is a fast food restaurant with a seating capacity of twenty.
7. The proposed location is open for business seven days a week, opening in the morning
and closing normally at 10:00 p.m., and on Friday or Saturday at 12:00 midnight.
8. Protests to the application were filed by Belinda Davis-Branch, General Counsel for
South Carolina State University, William A. Martin, Captain, Orangeburg County
Sheriff's Office, and J. E. Sulton, Sr. as spokesman for at least eight other concerned
citizens in the community.
9. The hearing on this matter was held August 14, 1995, with notice of the date, time,
place and subject matter of the hearing given to the applicant, DOR, and the
protestants.
10. A supplemental hearing was held on August 30, 1995 as the result of a Motion For
Reconsideration with such hearing being limited to evidence and issues concerning the
proximity of the proposed location to Felton Laboratory School.
11. Notice of the date, time, place and subject matter of the supplemental hearing was
given to the applicant, DOR, and the protestants.
b. Moral Character
12. The State Law Enforcement Division (SLED) completed a criminal background
investigation of the applicant.
13. The SLED report revealed no criminal violations.
14. The applicant has not engaged in acts or conduct that imply the absence of good
moral character.
15. The applicant is of good moral character.
c. Legal Resident and Principal Place of Abode
16. Brown was born in South Carolina and has resided in South Carolina since his birth.
17. Brown holds a valid South Carolina driver's license.
18. Brown currently resides at 810 Bennet Street in Orangeburg and resided in South
Carolina for more than 30 days prior to filing the application for a beer and wine
permit.
19. Brown is both a legal resident of the United States and South Carolina and held such
status for more than 30 days prior to the application, and has held a principal place
of abode in South Carolina for more than 30 days prior to filing the application.
d. Prior Revocation Of Beer or Wine Permit
20. Brown has never been issued a beer and wine permit and has never had a beer and
wine permit revoked.
e. Age
21. Brown's date of birth is March 8, 1961.
22. Brown is over twenty-one.
f. Proposed Location
23. There has been no reported criminal activity at the proposed location during the past
two years.
24. No churches are in the proximity of the proposed location.
25. The front door of the proposed location is 117 feet from the gate entrance to South
Carolina State University on Buckley Street.
26. The gate on Buckley Street is open daily from 5:00 a.m. and closes no earlier than
8:00 p.m.
27. The rear of the proposed location is approximately 30 feet from the property line of
South Carolina State University.
28. By measuring from the front door of the proposed location by use of normal routes
for vehicular traffic, there is a distance of 1050 feet from South Carolina State
University's student housing known as Mitchell Hall Dormitory, and 1250 feet from
student housing known as Luther Battiste Dormitory.
29. The grassy area behind the proposed location does not show signs of being a normal
route used by pedestrian traffic to and from the property of South Carolina State
University.
30. The front door of the proposed location is approximately 300 feet from the football
stadium of South Carolina State University.
31. The proposed location, as measured by the normal route for vehicular traffic, is 1250
feet from Felton Laboratory School, a school for kindergarten through the eighth
grade.
32. The distance by foot traffic across the grassy area from the school to the proposed
location is approximately 879 feet to the sidewalk nearest the side entrance to the
school and approximately 929 feet to the side door entrance itself.
33. Immediately adjoining the kindergarten through eighth grade school is a playground.
34. An entrance to such playground from the proposed location is approximately 578 feet
on the Buckley Street side and 939 feet to a second entrance on the school side.
35. There is a fence on all sides of the playground with a significant portion of the fence
being between six and eight feet high.
36. The playground fence has two openings with the opening on Buckley Street being
approximately ten feet wide.
37. The playground is equipped with traditional elementary school equipment such as
swings and "monkey bars" with such equipment being closer to the school than to
Buckley Street and occupying only approximately 28% of the area.
38. The proposed location is not visible from the side door of the school.
39. The proposed location is not visible from the opening in the playground fence on
Buckley, but a sign advertising the proposed location is visible.
40. The school is in operation during the normal school days of Monday through Friday
within normal school hours of 8:00 a.m. to 3:00 p.m.
41. No traffic concerns were expressed regarding the proposed location.
42. Russell Street intersects with Buckley Street in the vicinity of the proposed location.
43. At least six residences are on Russell Street in the vicinity of the proposed location,
with the residences on Russell Street ranging from 350 feet up to 550 feet from the
front door of the proposed location.
44. There are at least five residences on Wilkerson Street which are at least 450 feet or
more from the proposed location.
45. Three commercial establishments are in the immediate vicinity of the proposed
location. A beauty salon and a fast food outlet face the corner of Russell Street and
Buckley Street and are no more than 300 feet from the proposed location. There is
a funeral home on Russell Street which is no more than 550 feet from the proposed
location.
46. The average age of the student population at South Carolina State University is
twenty.
47. While some children live in the immediate vicinity of the proposed location, in general,
the residences are occupied by adults without children with many of the residences
occupied by adults of retirement age.
48. There is a convenience store with an off-premises beer and wine permit one block
from the proposed location.
g. Notice
49. Notice of the Brown application was published in the Times and Democrat, a
newspaper published and distributed in Orangeburg County, with notice published on
March 1, March 8, and March 15, 1995.
50. Notice of the Brown application appeared at least once a week for three consecutive
weeks in a newspaper most likely to give notice to interested citizens of Orangeburg.
51. Brown gave notice to the public by displaying a sign for fifteen days at the site of the
proposed business.
52. Brown gave notice of the application by way of required advertising by newspaper
and display of signs.
3. Discussion
a. General Criteria
There is no factual dispute in this matter as to the applicant's satisfying the requirements of good
moral character, being both a legal resident of South Carolina for 30 days, having a principal place
of abode in South Carolina for 30 days prior to filing the application, not having had a beer or wine
permit revoked within two years of the date of the current application, being at least twenty-one, and
providing proper notice of the application by way of newspaper and display signs. Rather, the only
matter disputed is whether the proposed location is a proper one.
Under S.C. Code Ann. §61-9-320, 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.
Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E. 2d 476 (Ct. App. 1984). Geography
alone is not the sole consideration of suitability, but rather any impact on the community must be
considered. Kearney v. Allen, 287 S.C. 324, 338 S.E. 2d 335 (1985).
While not all inclusive, numerous factors regarding proper location have been considered by the
courts. The proximity of the location to residences, churches, schools, and playgrounds can be a
proper ground by itself to deny the permit. William Byers v. S.C. Alcoholic Beverage Control
Comm'n, 305 S.C. 243, 407 S.E. 2d 653 (1991); Moore v. S.C. Alcoholic Beverage Control
Comm'n, 308 S.C. 167, 417 S.E. 2d 555 (1992). Law enforcement considerations are important.
Fowler v. Lewis, 260 S.C. 54, 194 S.E. 2d 191 (1973). The impact of the proposed location upon
traffic in the area can be a consideration. Palmer, 317 S.E. 2d at 478. The character of the entire
area as rural versus commercial may be considered. 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). The proximity of the proposed location to children may also be considered. Smith
v. Pratt, 258 S.C. 504, 189 S.E. 2d 301 (1972). It is relevant whether there are already similar
existing businesses in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E. 2d 801 (1973). Further,
objections to the permit must be based upon adequate factual support. Ronald Byers v. S.C.
Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984).
b. Basis For Decision
The purpose of the above discussion is to demonstrate that the decision of whether a proposed
location is proper is highly factual and is based upon the weighing and balancing of numerous
considerations. I have considered all relevant factors in my deliberations and have given due weight
to the evidence presented at the hearing.
After considering all factors I conclude the permit must be granted. The distance from the proposed
location to the kindergarten - middle school and its playground was established as approximately 879
feet by foot traffic. Further, the evidence best supports a determination that the grassy area behind
the location is not a commonly used area for foot traffic. Further, the presence of children in
proximity to the proposed location is further diminished by two fences. One fence surrounds the
playground itself and a second fence separates the proposed location from the grassy area on the
property of South Carolina State University. Given the two fences and the significant distance
between the location and the school, the fact that they are relatively close together is not a prohibiting
factor. I assign little or no significance to the proximity of the proposed location to South Carolina
State University, since proximity to a university is not within the meaning of the word "school"
expressed at S.C. Code Ann. §61-9-320(6). I also note the character of the vicinity is generally
commercial. While the lack of permits or liquor licenses does indicate the general character of the
neighborhood, there is at least one beer and wine permit already within one block of the proposed
location. Finally, I do not find the proposed location presents a proximity problem to residences.
Considering all competing factors, the application must be granted.
(1) Proximity To School and Playground
Primary Education
Felton Laboratory School is established for kindergarten through the eighth grade, and is located
1250 feet from the front door of the proposed location by vehicular traffic and 879 feet by foot traffic.
The playground immediately adjoining the school is fenced on all sides and at its nearest point is
approximately 578 feet by foot traffic from the proposed location. Foot traffic across the grassy field
behind the proposed location is not a common and accepted means of travel and the presence of the
fence provides a significant separation of the children from the proposed location.
South Carolina case law has addressed the proximity to schools and children. The existence of
schools within distances of 2600 feet and 1050 feet from a proposed location have been factors in
denying a beer and wine permit. Moore v. S.C. Alcoholic Beverage Control Comm'n, ___ S.C.
___, 417 S.E. 2d 555 (1992); Kearney v. Allen, 287 S.C. 324, 338 S.E. 2d 335 (1985). In the instant
case, the elementary - middle school is 1250 feet from the proposed location, a distance which is less
than the 2600 but further than the 1050 feet addressed by prior cases.
Additionally, a location that was directly across the street from a playground area was a factor in
denying a permit. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 118 (1981). Further,
children separated by a fence from a proposed location by approximately 460 feet away was found
to be insufficient to deny a beer and wine permit. Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301
(1972). In the instant case, the children's playground is not directly across the street, but rather is
approximately 578 feet away and includes two fences within that distance.
Higher Education
I note that the proximity to South Carolina State University is an issue raised in this matter as well.
If the protected institution of "school" in S.C. Code Ann. §61-9-320(6) included college or university,
such proximity would be a significant factor. The term "school," however, in accordance with the
long standing administrative policy of DOR and the intent of the General Assembly, does not include
a college or university and thus such proximity is of no significance to the instant case.
Under S.C. Code Ann. §61-3-40 (Supp. 1994) the Alcoholic Beverage Control Act is declared to be
complementary to and not in conflict with laws providing for the legal sale of beer and wine. Thus,
in interpreting the provisions of Chapter 9 dealing with beer and wine, the General Assembly has
expressed its intent that there be no conflict between the two areas of law. To read the meaning of
the word "school" in Chapter 5 differently from the same word in Chapter 9 creates conflict.
For purposes of a liquor license, S.C. Code Ann. §61-3-440(2) (Supp. 1994) defines "school" as an
"establishment, other than a private dwelling[,] where the usual processes of education are usually
conducted." An Attorney General's opinion holds that the term "school" in S.C. Code Ann. §61-3-440(2) does not include college or university. 1975-76 Op. S.C. Att'y Gen. No. 4494 at 351. Section
61-3-440(2) concerns the prohibition of granting a liquor license to a proposed location within 300
or 500 feet of a protected institution.
The former ABC Commission and now the DOR have interpreted both S.C. Code Ann. §§61-3-440(2) and 61-9-320(6) as not including colleges or universities. The longstanding contemporaneous
construction of a statute by the agency charged with administration and enforcement of that statute
is very significant. Shasta Beverages v. S.C. Tax Comm'n, 280 S.C. 48, 310 S.E. 2d 655 (1983).
Such a position is entitled to the most respectful consideration and should not be overruled absent
compelling reasons. Emerson Electric Co. v. Wasson, 287 S.C. 394, 339 S.E. 2d 118 (1986).
Longstanding administrative positions that have been acquiesced in by the General Assembly despite
amendments to the area of law under review are due controlling weight in interpreting a statute unless
the interpretation is plainly erroneous. Bowles v. Seminole Rock and Sand Co., 325 U.S. 410
(1945); United States v. Moore, 95 U.S. 760 (1877); Ryder Truck Lines, Inc. v. South Carolina
Tax Comm'n, 248 S.C. 148, 149 S.E. 2d 435 (1966).
(2) Similar Businesses In the Area
It is relevant to consider whether there are other similar existing businesses in the area. For example,
in Taylor v. Lewis, 261 S.C. 168, 198 S.E. 2d 801 (1973), there were already similar existing
businesses in the area. One was within 200 feet of the proposed location, others within one fourth
of a mile, and still six others were within a mile of the proposed location. In the present case, there
is one location in the area and that is an off-premises location "one block" away. The presence of
only one location, however, is insufficient to characterize the area as having similar existing
businesses. While the introduction of a beer and wine permit will have a tendency to change the
character of this area, this single factor is insufficient to deny the permit. The addition of the instant
proposed location will not be so significant as to have a negative effect on the community.
(3) Lack of Residential Nature At The Proposed Site
An argument was made that the residential nature of the area should prohibit granting the license.
The character of the area as being commercial versus residential is a consideration. Ronald Byers v.
S.C. Alcoholic Beverage Control Comm'n, 281 S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984). The
proposed location is in an area which is distinctively commercial in character. In the vicinity of the
proposed location, Russell Street intersects with Buckley Street and Wilkerson Street intersects with
Russell Street. There are at least six residences on Russell Street ranging from 350 feet to 550 feet
from the proposed location. Further, there are at least five residences on Wilkerson Street at
distances from the proposed location of at least 450 feet or more.
All of these residences, however, are on Russell or Wilkerson. There are no residences on Buckley
Street in proximity to the proposed location. All of the surrounding properties on Buckley and
behind the proposed location are either school property or commercial establishments. Three
commercial establishments are in the immediate vicinity in that a beauty salon and a fast food outlet
face the corner of Russell Street and Buckley Street, and are no more than 300 feet from the
proposed location. Further, a funeral home is on Russell Street no more than 550 feet from the
proposed location. When considering the overall character of the area, the proposed location is in
an area that is distinctively commercial as opposed to residential.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. The applicant possesses good moral character. S.C. Code Ann. §61-9-320(1).
2. The applicant is a legal resident of the United States and has been a legal resident of
South Carolina for 30 days prior to filing the application and has his principal place
of abode in South Carolina. S.C. Code Ann. §61-9-320(2).
3. The applicant has not had a beer or wine permit revoked within two years of the date
of the current application. S.C. Code Ann. §61-9-320(4).
4. The applicant is at least twenty-one years old. S.C. Code Ann. §61-9-320(5).
5. The proximity of a proposed location to residences, churches, schools, and
playgrounds can be a proper ground by itself to deny a permit to a proposed location.
William Byers v. SC Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.
2d 653 (1991).
6. While not controlling, distances (e.g. 2600 feet and 1050 feet) to a school from a
proposed location are legitimate considerations in the review of a beer and wine
permit. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.
2d 555 (1992); Kearney v. Allen, 287 S.C. 324, 338 S.E. 2d 335 (1985).
7. The location of a playground relative to a proposed location is a factor in reviewing
a permit. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E. 2d 118 (1981).
8. The separation of children from a proposed location by a fence and by distance (e.g.
approximately 460 feet) is a factor in reviewing a permit. Smith v. Pratt, 258 S.C.
504, 189 S.E. 2d 301 (1972).
9. The existence of other similar businesses in the area is a factor in reviewing a permit.
Taylor v. Lewis, 261 S.C. 168, 198 S.E. 2d 801 (1973).
10. Considering all relevant factors, the proposed location is a proper location. S.C.
Code Ann. §61-9-320(6).
11. The applicant gave proper notice of the application by way of newspaper and display
of signs. S.C. Code Ann. §61-9-320(7) and (8).
12. The applicant meets the requirements for the issuance of a beer and wine permit
pursuant to S.C. Code Ann. §61-9-320.
IV. ORDER
DOR is ordered to grant Brown's application for an on-premises beer and wine permit at 110 Buckley
Street, Orangeburg, South Carolina.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 1st day of September, 1995. |
