ORDERS:
INTERLOCUTORY ORDER
This matter comes before me pursuant to S.C. Code Ann.§ 61-1-55 (Supp. 1994) and
S.C. Code Ann. § 1-23-310 (Supp. 1994), et seq., upon an application for a retail liquor license
and on-premises beer and wine permit at Route 2, Box 110B, Kingstree, South Carolina, by
Petitioners filed with the South Carolina Department of Revenue and Taxation (DOR). A
contested case hearing was held on September 27, 1995. One issue raised was the proximity of a
church to the proposed location pursuant to S.C. Code Ann. § 61-3-440 (Supp. 1994). The
evidence in the record is insufficient to determine the proximity of the church in question. A final
order and decision on the applications for the license and permit is held in abeyance pending
determination of that distance.
FINDINGS OF FACT
By a preponderance of the evidence, I find these facts:
(1) The applicant seeks a retail liquor license and on-premises beer and wine permit for a
location at Route 2, Box 110B, Kingstree, South Carolina, being at the intersection of U.S.
Highway 527 and State Road S-45-748, having filed applications with DOR, AI #103791 and
#103792.
(2) Notice of the time, date, place, and subject matter of the hearing was given to the
Petitioner, protestants, and DOR.
(3) The DOR file for the applications in issue, including the applications, SLED
investigative information, and written protests, was transmitted to the Administrative Law Judge
Division and incorporated into the record of the hearing.
(4) The proposed location is located in the unincorporated portion of Williamsburg
County.
(5) The nearest church to the proposed location is St. Mary United Methodist Church, on
Highway 527.
(6) Agent W. W. Scott of the SLED Alcohol Enforcement Unit performed the
background investigation on the applicants and proposed location. Agent Scott did not appear at
the hearing.
(7) Agent Scott's map notes that St. Mary United Methodist Church is 2/10 miles from
the proposed location; however the map does not show the location of the church, and it does not
give a specific measurement in feet.
(8) Rev. Edward McLeod, pastor of St. Mary United Methodist Church, and
Rev. Wayland Owens, pastor of First Freewill Baptist Church, testified that St. Mary is within 500
feet of the proposed location.
(9) The court is without sufficient information to determine the exact distance from the
proposed location to St. Mary United Methodist Church.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) S.C. Code Ann. § 61-1-55 (Supp. 1994) provides that the South Carolina
Administrative Law Judge Division is empowered to hear all cases previously heard by the former
ABC Commission pursuant to Chapter 23 of Title I of the 1976 Code, as amended.
(2) DOR is authorized to issue retail liquor licenses under the provisions of S.C. Code
Ann. § 61-3-410(3) (Supp. 1994).
(3) S.C. Code Ann. § 61-3-440 (Supp. 1994) dictates that a retail liquor store located
outside a municipality must be a minimum of five hundred feet (500') from any church, school, or
playground.
(4) 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 the 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, cemeteries, 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 actually in use as a playground the grounds necessary for
ingress or egress to such grounds from the public thoroughfare.
(5) 23 S.C. Code Ann. Regs. 7-55 (1976) incorporates verbatim the language of
Regs. 7-11, with the addition of an introductory paragraph.
(6) No retail liquor license can be granted until a showing is made to this Court that the
proposed location is not within five hundred feet (500') of St. Mary United Methodist Church
using the appropriate method of measurement. The evidence in the record is insufficient to
determine the distance from the proposed location to St. Mary United Methodist Church using the
means of measurement prescribed by statute and regulation.
(7) Pursuant to S.C. Code Ann. § 1-23-630 (Supp. 1994) an administrative law judge has
the power to issue those remedial writs necessary to give effect to his jurisdiction.
DISCUSSION
It is unclear from Agent Scott's drawing what method of measurement was used in
determining that St. Mary United Methodist Church is .2 miles from the proposed location. The
regulations provide that the starting point of measurement is the nearest entrance of the proposed
location. "Entrance" of the business establishment is not further defined as it is for churches,
schools, and playgrounds. "Entrance" of the proposed location means the actual door of the
establishment. The line of measurement must be the "shortest route of ordinary pedestrian or
vehicular travel along the public thoroughfare" (§ 61-3-440, Regs. 7-11; Regs. 7-55) i.e., the
shortest distance to either walk or drive across public property or roads to get to the destination.
The end of the measurement is the "nearest point of entrance to the grounds of the church...
which provide ingress and egress to any building in which...services...or classes are held,
whichever is the closer." Regs. 7-11 and Regs. 7-55.
Unlike the starting point (the nearest entrance of the business establishment), the
destination is dictated by the location of the point of entrance to the grounds of the church.
Grounds used for beautification or cemeteries are not to be considered as part of an entrance.
"Point of entrance to the grounds of the church" means a sidewalk, driveway, parking lot, path,
stairway, carport, courtyard, plaza, etc., or a combination of any of the above used in ordinary
pedestrian or vehicular travel leading directly from a boundary of the church property on a public
thoroughfare to the nearest door of the nearest church building used for services or classes. In
other words, if a parking lot or sidewalk connects the street to the closest door of the church, the
measurement should be taken from the front door of the business location to the closest point
where the church sidewalk or parking lot abuts the street. If a distinguishable means of ingress
and egress exists, the measurement should be made to the church property boundary where such
access commences. If one does not exist, the nearest entrance to the grounds is that point on the
church property boundary in a straight line from the nearest church door.
ORDER
IT IS THEREFORE ORDERED that within fifteen (15) days of the date of this Order,
DOR, through agents of SLED, re-measure the distance between the proposed location and
St. Mary United Methodist Church and submit to this Court, Petitioner, and Spokespersons for
the Protestants, a map which includes a drawing of the line of measurement with distances
computed shown. The measurement must be made from the front door of the proposed location
to the nearest entrance to the grounds of St. Mary United Methodist Church used for ingress or
egress to the nearest church building in which services or classes are held.
Upon review of the submitted drawing and computations, a final order and decision shall
be rendered in this matter on both applications.
_____________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
September 29, 1995
Columbia, South Carolina |
