ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Danny B. Ruppe (Ruppe) of Gaffney, South Carolina filed with the Respondent,
South Carolina Department of Revenue and Taxation (DOR), an application for an off-premises beer
and wine permit. Members of the community filed a protest seeking to prevent DOR from granting
the permit. DOR declined to process the application by relying upon 23 S.C. Code Ann. Regs. 7-96
(1976), which provides that an application for a location previously found unsuitable for a permit will
not be processed unless the applicant can show that some material change with respect to the location
has occurred.
At the hearing on August 17, 1995, Temple Baptist Church moved to intervene as a party
Respondent. No objection was made and the motion was granted. Jurisdiction for this hearing vests
in the ALJD under S. C. Code Ann. §§61-1-55 (Supp. 1994), 1-23-600(B) (Supp. 1994) and 1-23-310 (Supp. 1994).
The sole matter for consideration is the decision by DOR not to process the application. I make no
findings or conclusions of law on the issue of whether the proposed location is a proper location
within the meaning of S.C. Code Ann. §61-9-320(6) (Supp. 1994). This Order addresses only the
issue of whether material changes with respect to the location have occurred since 1991. For the
following reasons, I find that material changes have occurred and that DOR should process Ruppe's
application for a beer and wine permit.
Any issues raised in the proceedings or hearing of this case but not addressed in this Order are
deemed denied. ALJD Rule 29B. 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 29C.
II. Issues
Have material changes with respect to 1614 Cherokee Avenue, Gaffney, South Carolina, occurred
since the prior determination of unsuitability by the Alcoholic Beverage Control Commission?
III. Analysis
1. Positions of Parties:
While the Alcoholic Beverage Control Commission determined in 1991 that the location was not
proper for a beer and wine permit and in 1992 determined that no material change had occurred since
1991, Ruppe asserts that, considering all of the changes since 1991, there have been material changes
with respect to the location. DOR and Temple Baptist Church assert no material changes have
occurred since 1991.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
a. General
1. In April of 1995, Ruppe filed an application with the Department of Revenue for an off-premises beer and wine permit.
2. The application is identified by DOR as AI # 103205.
3. The proposed location of the business and the place where the beer and wine permit will be
utilized is 1614 Cherokee Avenue, Gaffney, South Carolina.
4. The nature of the business is that of a convenience store doing business as Auto Stop Food
Mart.
5. A protest to the application was filed by Reverend Paul Noe on behalf of the Temple
Baptist Church .
6. The hearing on this matter was held August 16, 1995, with notice of the date, time, place
and subject matter of the hearing given to the applicant, DOR, and the protestants.
b. Changes in the Location
7. On October 10, 1991, (1991 order) the former S. C. Alcoholic Beverage Control
Commission (ABC) denied an off-premises beer and wine permit to a location at 1614
Cherokee Avenue, Gaffney, South Carolina.
8. The 1991 order is in part based upon a determination that the area was a residential, church,
and playground area.
9. The 1991 order is in part based upon a determination that a day care center was within 300
feet of the proposed location.
10. At the 1991 ABC hearing, a map covering the east and west side of Cherokee Avenue
between 9th and 10th Streets and covering a portion of the east and west side of Cherokee
Avenue between 8th and 9th and between 10th and 11th was submitted.
11. The location under review in this case is the same location at issue in the 1991 order. The
location is on the east side of Cherokee Avenue between 9th Street and 10th Street.
12. In 1991, five residences were on the east side of Cherokee Avenue between 9th Street and
10th Street and three residences were on the west side.
13. The 1991 order relies in part upon a finding "... that the location is in close proximity to at
least eight residences."
14. Today, of the five residences on the east side of Cherokee Avenue between 9th and 10th
Streets in 1991, only one residence now stands while the other four have been removed or
destroyed.
15. The 1991 order relies in part upon a finding "... [o]ther than the craft shop and a business
across from the church ... there are no other commercial establishments in the immediate
area."
16. In 1991 two commercial facilities were on the west side of Cherokee Avenue between 9th
and 10th Streets with one of the facilities being vacant.
17. Today, the west side of Cherokee Avenue between 9th and 10th Streets has four
commercial facilities with none of the four being vacant.
18. The map submitted at the 1991 hearing does not show a commercial establishment on the
west side of Cherokee Avenue between 10th and 11th Streets.
19. Today, the west side of Cherokee Avenue between 10th and 11th Streets has a commercial
establishment 375 feet from the proposed location.
20. The 1991 order relied in part upon a finding that "[a] day care center has opened up in the
building diagonally across the street to the west, 300 feet from the location."
21. Today, the day care center addressed in the 1991 order is not in operation.
22. The church facilities in operation in 1991 are in operation today.
23. The playground facilities in operation in 1991 are in operation today.
3. Discussion
Since the S. C. Alcoholic Beverage Control Commission determined in 1991 that the location was
improper, the issue is whether material changes with respect to the location have taken place since
the 1991 denial. Material changes have occurred in the relevant factors of proximity to residences,
commercial nature of the area, and the absence of a child care center.
Under S. C. Code Ann. §61-9-320 (Supp. 1994), no beer and wine permit may be granted unless the
location of the proposed place of business is a proper location. In determining a proper location, the
fact-finder may consider any factors that demonstrate the adverse effect the 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). A significant factor can be the proximity of residential areas to a proposed location.
See Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S. C. 451, 211 S.E. 2d 243 (1975)
(the neighborhood was predominately residential); Schudel v. S.C. Alcoholic Beverage Control
Comm'n, 276 S.C. 138, 276 S.E. 2d 308 (1981) (residents were in close proximity to the location).
In 1991, ABC relied, in part, upon the proximity to eight residences. A material change has taken
place in the proximity to these eight residences. Five of the eight residences were on the same side
of Cherokee Avenue as is the proposed location. Of those five, only one now stands with the other
four having been removed or destroyed.
Additionally, a consideration in determining if a location is proper is whether the area is commercial.
See Taylor v. Lewis, 261 S.C. 168, 198 S.E. 2d 801 (1973) (the surrounding area was about half
residential and half commercial); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n, 281
S.C. 566, 316 S.E. 2d 705 (Ct. App. 1984) (location was in a commercial area). In 1991, two
commercial facilities were on the west side of Cherokee between 9th and 10th Streets with one of the
facilities being vacant. Today, the west side of Cherokee between 9th and 10th Streets has four
commercial facilities with none of the four being vacant. Additionally, the map submitted at the 1991
hearing does not show a commercial establishment on the west side of Cherokee Avenue between
10th and 11th Streets whereas today, the west side of Cherokee between 10th and 11th Streets has
a commercial establishment 375 feet from the proposed location. The commercial nature of the area
is increasing and constitutes a change in the location.
Finally, the lack of proximity to children is a relevant factor in determining whether a location is
proper. Smith v. Pratt, 258 S.C. 504, 189 S.E. 2d 301 (1972) (the entrance to an orphanage was
located more than 1,000 feet from the location and the nearest corner of the orphanage was 450 feet
away). The 1991 order relied in part upon a finding that "[a] day care center has opened up in the
building diagonally across the street to the west, 300 feet from the location." The day care center
addressed in the 1991 order is no longer in operation. This fact constitutes an additional change in
the location.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. DOR shall not process an off-premises beer and wine permit where an application has been
denied by the S. C. Alcoholic Beverage Control Commission unless some material change
with respect to the location has occurred. 23 S.C. Code Ann. Regs. 7-96 (1976).
2. A material change with respect to a location is any change of a meaningful nature to any
factor that is relevant to the decision of whether the location for a beer and wine permit is
a proper location. S.C. Code Ann. §61-9-320(6) (Supp. 1994).
3. A significant factor in determining whether a location is proper is the proximity to
residential areas. Roche v. S.C. Alcoholic Beverage Control Comm'n, supra; Schudel v.
S.C. Alcoholic Beverage Control Comm'n, supra.
4. The commercial nature of the area is a factor in determining whether a location is proper.
Taylor v. Lewis, supra; Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,
supra.
5. The lack of proximity to children is a relevant factor in determining whether a location is
proper. Smith v. Pratt, supra.
6. Material changes have occurred at the proposed location concerning the proximity to
residences, the commercial nature of the area, and the lack of proximity to children.
IV. ORDER
DOR is ordered to process the application filed by Ruppe for an off-premises beer and wine
permit at 1614 Cherokee Avenue, Gaffney, South Carolina.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 18th day of August, 1995. |