ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Janice Rodgers (Rodgers) of Anderson, South Carolina filed with the South Carolina
Department of Revenue and Taxation (DOR), the Respondent, an application for an off-premises beer
and wine permit for 5733 Dobbins Bridge Road, Anderson, South Carolina. Bruce W. Evans, Pastor
of Andersonville Baptist Church, 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 Regs.
7-90 (Supp. 1995). 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. 1995).
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).
II. Issues
Does Rodgers meet the statutory requirements of S. C. Code Ann. § 61-9-320 (Supp. 1995) by
demonstrating she 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 years of age 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 the display of signs?
III. Analysis
1. Positions of Parties:
Rodgers asserts she meets all the requirements of the statute. DOR states that due to the protest, no
permit could be granted and it awaits the outcome of this hearing. 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. On or about October 31, 1995, Rodgers filed an application with the Department of Revenue
for an off-premises beer and wine permit.
2. The application is identified by DOR as BG # 105810.
3. The proposed location of the business and the place where the beer and wine permit will be
utilized is 5733 Dobbins Bridge Road, Anderson, South Carolina.
4. The nature of the business is that of a convenience store doing business as Public Well Cafe
and Store.
5. A protest to the application was filed by Pastor Bruce W. Evans on behalf of Andersonville
Baptist Church .
6. Except for the unresolved issue of suitability of location, DOR would have issued the permit.
7. The hearing on this matter was held February, 5, 1996, with notice of the date, time, place
and subject matter of the hearing given to the applicant, DOR, and the protestants.
b. Moral Character
8. The State Law Enforcement Division (SLED) completed a criminal background investigation
of the applicant.
9. The SLED report revealed no criminal violations.
10. The applicant has not engaged in acts or conduct that imply the absence of good moral
character.
11. The applicant is of good moral character.
c. Legal Resident and Principal Place of Abode
12. Rodgers was born in South Carolina and has resided in South Carolina since her birth.
13. Rodgers holds a valid South Carolina driver's license.
14. Rodgers currently resides at 926 Old Webb Road in Anderson, South Carolina, and resided
in South Carolina for more than 30 days prior to filing the application for a beer and wine
permit.
15. Rodgers 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
16. Rodgers has never been issued a beer and wine permit and has never had a beer and wine
permit revoked.
e. Age
17. Rodgers' date of birth is February 14, 1962.
18. Rodgers is over twenty-one years of age.
f. Proposed Location
19. The prior owner of the existing location operated with an off-premises beer and wine permit
for 7 years.
20. The applicant will continue the same business as the prior owner.
21. There has been no reported criminal activity at the proposed location during the past two
years.
22. The proximity to churches consist of Providence Church at .7 of a mile, Andersonville Baptist
Church at 1.7 miles, and Roberts Presbyterian Church at 1.8 miles.
23. Beer and wine is sold under off-premises permits by two nearby and similar entities known
as the Villager and an Amoco gasoline station.
24. The closest school is West Market Street Elementary School, which is approximately five
miles from the applicant's location.
25. The location is adequately served by traffic routes of Dobbins Bridge Road and Huitt Road.
26. The proximity to residences consists of one residence across the street, one residence 300
feet, and one residence at 600 feet.
27. The area is predominately rural.
g. Notice
28. Notice of the Rodgers application was published in the Anderson Monitor/Business and
Politics, a newspaper published and distributed in Anderson County, with notice published
on October 26, November 2, and November 9, 1995.
29. Notice of the Rodgers application appeared at least once a week for three consecutive weeks
in a newspaper most likely to give notice to interested citizens of Anderson.
30. Rodgers gave notice to the public by displaying a sign for fifteen days at the site of the
proposed business.
31. Rodgers 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 whether or not the applicant satisfies 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
years of age, and providing proper notice of the application by way of newspaper and the display of
signs. Rather, the only matter disputed is whether the proposed location is a proper one.
Under S.C. Code Ann. §61-9-320 (Supp. 1995), 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. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308
S.C. 167, 417 S.E.2d 555 (1992); William Byers v. S.C. Alcoholic Beverage Control Comm'n, 305
S.C. 243, 407 S.E.2d 653 (1991). 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, supra 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.
I conclude the permit must be granted. It is significant that the prior owner at the existing location
operated with an off-premises beer and wine permit for seven (7) years. Nothing in the evidence
indicates any problem with the location during that time period, and in this instant case, the new
owner will continue the former business. There is no evidence of criminal activity at the location nor
of any traffic concerns at the location. Additionally, the distances to churches, schools and
residences are sufficient not to present a problem to conducting worship services, educational
activities or residential living. Rather, the area is rural in nature. Finally, there are already similar
establishments in the vicinity such that the granting of the permit will not significantly change the
overall character of the area.
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) (Supp.
1995).
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) (Supp. 1995).
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) (Supp. 1995).
4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp.
1995).
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. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407
S.E.2d 653 (1991).
6. While not controlling, distances 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 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).
8. Considering all relevant factors, the proposed location is a proper one. S.C. Code
Ann. § 61-9-320(6) (Supp. 1995).
9. The applicant gave proper notice of the application by way of newspaper and the
display of signs. S.C. Code Ann. § 61-9-320(7) and (8) (Supp. 1995).
10. The applicant meets the requirements for the issuance of a beer and wine permit
pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).
IV. ORDER
DOR is ordered to grant Rodgers' application for an off-premises beer and wine permit at 5733
Dobbins Bridge Road, Anderson, South Carolina.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 7th day of February, 1996. |