ORDERS:
ORDER AND DECISION
STATEMENT OF THE CASE
This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and S.C.
Code Ann. § 1-23-310, et seq. (Rev. 1986 & Supp. 1995) upon the application of Ann R. Varnadore
for an on-premises beer and wine permit for The Cozy Room located on Highway 200 in Fairfield
County, South Carolina. After notice to the parties, a hearing was conducted on November 29, 1995.
At the hearing, Reverend Michael Sollers moved, without objection, to be made a party. The issued
considered was the suitability of the proposed business location. Based upon the evidence presented,
the permit is denied.
FINDINGS OF FACT
I make the following findings of fact, taking into consideration the burden on the parties to
establish their respective cases by a preponderance of the evidence, and taking into account the
credibility of the witnesses:
1. The applicant, Ann R. Varnadore, is over the age of twenty-one and is a resident of
South Carolina and a legal resident of the United States.
2. She has never been convicted of a crime and is a person of good moral character.
3. Currently, she has another beer and wine permit for a location in Chester County. No
permit has been revoked.
4. The Cozy Room is located in the Mitford community in Fairfield County. The
proposed location is one mile from Great Falls, located in Chester County.
5. The proposed location is a leased space in a large building called The Gold Nugget
Mall. The building is owned by McDonald Amusement which leases nine spaces to persons who
operate video amusement games. Petitioner leases one space.
6. The Cozy Room is open 24 hours a day only to persons over the age of 21. A security
guard patrols the premises begining at 5:00 p.m. The other businesses are also open 24 hours a day.
7. Across the highway from The Gold Nugget Mall is a wooded area. On each side of
the building, there are residences. Near the rear of the building and next door is Buddy's Garage, an
automobile paint and body shop and garage business.
8. The area is rural residential. There are no other businesses in the vicinity. There are
several locations in the Mitford community that sell beer and wine.
9. There are no schools or playgrounds in the area. The closest church, Evangel Temple
Assembly of God, is located 698 feet from the proposed location.
10. Numerous protests were filed against the location. There was a petition signed by
over two hundred persons in the community presented by Rev. Michael Sollers. Letters from six
churches, the sheriff, and the county magistrate all object to the issuance of any beer and wine permits
in the Mitford community because it is a rural community covering seven miles that already has five
businesses licensed to sell beer and wine or alcohol. They feel the only reason for the sale of any type
of alcohol in the community is because of video poker and the use of alcohol to promote gambling.
The petition is not specific to the proposed location but expresses objections to any additional permits
in the community.
11. Only two protestors appeared at the hearing. Reverend Sollers, pastor of the Evangel
Temple Assembly of God, represented the persons who signed the petition. One resident of the
community appeared to voice objections to the application.
12. The resident lives less than one-tenth of a mile from the proposed business and
expressed concerns about the proximity of the business to his home, the extra traffic to the area from
neighboring counties, increased crime, and the effect of alcohol on a person's judgment.
13. Reverend Sollers echoed these same sentiments adding that the residents of the
community are elderly and that there have been motor vehicle accidents in the area one of which
involved an intoxicated person. He also emphasized there are five other locations in the community
which sell beer and wine and the increased traffic from neighboring counties and from outside South
Carolina.
14. Notice of the application was posted at the location and published in the Herald
Independent in Fairfield County for the time period required.
15. Chester and Lancaster Counties voted in the local referendum to prohibit the playing
of video poker within the county. Residents of the county who want to play these video games must
go to a county that does not prohibit playing these games. Fairfield County allows the playing of
video poker.
16. The proposed location is located in Fairfield County just across the county line from
both Chester and Lancaster Counties.
DISCUSSION
The Administrative Law Judge is vested with broad discretion in determining the suitability
of a location and the issuance of a beer and wine permit. See Fast Stops v. Ingram, 276 S.C. 593,
281 S.E.2d 118 (1991); Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
The legislature has provided factors which may be considered in determining the unsuitability of a
location. The courts have recognized that a variety of considerations relating to the nature and
operation of the business should be evaluated including the impact upon the community.
Mitford is in a predominately rural area of the county. Photographs and a map show that the
residences are in close proximity to each other and the proposed location. The Golden Nugget Mall
is the only commercial venture in the immediate area with the exception of Buddy's Garage. It is not
located in a commercial district of Mitford nor is it in the vicinity of other commercial businesses.
The only reason to go to the Golden Nugget is for entertainment in the form of video games. The
playing of video games, in particular video poker, is a regulated activity by the state. It is also a
regulated form of gambling. See Reyelt v. S.C. Tax Comm'n, C/A No. 6:93-1491-3 and C/A No.
6:93-1493-3 (D.S.C. 1993).
The prohibition of video poker in a neighboring county, the proximity of the Golden Nugget
Mall to those counties, and the effect on the community should be considered. Although the playing
of video poker is legal in Fairfield county, the location chosen by the proposed business at the county
line increases the likelihood that persons from the neighboring counties will travel to play video
poker. The law does not prohibit its location. However, the increased traffic in the community will
change the character of the community especially since the businesses are open 24 hours a day. The
sale of beer and wine for on-premises consumption at a business opened 24 hours for the playing of
adult video games in close proximity to the residents in the community would have a negative impact
on this community. The existence of the proposed location in this area of Mitford changes the
character of the community. Its proximity to the residences is a factor contributing to its unsuitability
for the sale of beer and wine.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge is vested with the powers, duties and responsibilities
by the former Alcoholic Beverage Control Commission and hearing officers pursuant to Chapter 23
of Title 1. S.C. Code Ann. § 61-1-55 (Supp. 1995).
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the statutory requirements for the
issuance of beer and wine permits. It provides:
No permit authorizing the sale of beer or wine may be issued unless: (1) The applicant, any partner or co-shareholder of the applicant, and
each agent, employee, and servant of the applicant to be employed on the
licensed premises, are of good moral character.
(2) The retail applicant is a legal resident of the United States and
has been a legal resident of this State for at least thirty days before the date
of application and has maintained his principal place of abode in South
Carolina for at least thirty days before the date of applicant.
(3) The wholesale applicant is a legal resident of the United States
and has been a legal resident of this State for at least thirty days before the
date of application and has maintained this principal place of abode in South
Carolina for at least thirty days before the date of application or has been
licensed previously under the laws of this State.
(4) The applicant, within two years before the date of applicant, has
not had revoked a beer or a wine permit issued to him.
(5) The applicant is twenty-one years of age or older.
(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.
(7) Notice of application has appeared at least once a week for three
consecutive weeks in a newspaper most likely to give notice to interested
citizens of the county, city, or community in which the applicant proposes
to engage in business. The department shall determine which newspapers
meet the requirements of this section based on available circulation figures.
However, if a newspaper is published within the county and historically has
been the newspaper where the advertisements are published, the
advertisements published in that newspaper meet the requirements of this
section. Applicants for a beer or wine permit and an alcoholic liquor license
may use the same advertisement for both if it is approved by the department.
(8) Notice has been given by displaying a sign for fifteen days at the
site of the proposed business.
The sign must:
(a) state the type of permit sought;
(b) tell an interested person where to protest the application;
(c) be in bold type;
(d) cover a space at least eleven inches wide and eight and one-half inches high;
(e) be posted and removed by an agent of the department.
Section 61-9-320, S.C. Code of Laws (Supp. 1993).
3. The determination of suitability of the proposed location is not necessarily a function
solely of geography. It may involve an infinite variety of considerations related to the nature and
operation of the proposed business and its impact on the community within which it is to be located.
Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
4. 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 Comm'n, 305 S.C. 243, 410 S.E.2d 653 (1991).
5. The location of the proposed business is not suitable for the issuance of an on-premise
beer and wine permit because of its close proximity to residences and the adverse impact it would
have upon this community.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED, that the application of Ann R. Varnadore for an on-premise beer and wine permit
for The Cozy Room located on Highway 200 in Fairfield County is DENIED.
AND IT IS SO ORDERED.
__________________________
ALISON RENEE LEE
Administrative Law Judge
February _____, 1996
Columbia, South Carolina. |
