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 Frankie O. Keel
and Anderson Oil Co. for an off-premise beer and wine permit for Rainbow Gas Garden #7 to be
located at 101 South Railroad West, in Brunson, South Carolina. After notice to the parties, a
hearing was conducted on February 23, 1996. Based upon the evidence presented, the application
is granted.
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, Frankie O. Keel, is a 58 year old, life long resident of the state of South
Carolina and is a legal resident of the United States.
2. He does not have a criminal record and is a person of good moral character.
3. Keel is the Vice President and a partner in Anderson Oil Co. which owns and operates
five gas stations in South Carolina and leases at least ten other stations to persons who operate the
business.
4. Keel holds at least one beer and wine permit which has never been suspended or
revoked.
5. The proposed location is a gas station convenience store to be located at the corner
of Highway 278 and Mankor Street in Brunson. The location has not yet been built, but Keel
submitted photographs of other similar stations to depict the proposed appearance of the building and
gas pumps. The proposed business will be a BP gas station. When built, the location will be open
seven days a week from 6:00 a.m. to 11:00 p.m.
6. Anderson Oil Co. provides training to its employees regarding the sale of beer and
wine. This training includes viewing a videotape entitled, "ID Fake Out," a written test and review
of the company policy. Both the test and the policy are required to be signed by the employee. In
addition, the company provides on-going training to remind the employees of the importance of
appropriate sales.
7. The proposed location on Highway 278 is a commercial district. One block from the
proposed location is a laundry-cleaners business and a Exxon gas station and convenience store. The
Exxon sells beer and wine for off-premise consumption and is the only gas station in town. Across
Highway 278 are railroad tracks, a small shopping area, the post office, and the town hall.
8. Behind the proposed location on Mankor Street are residences, the closest one being
260 feet from the middle of the property where the business will be built. Across Mankor Street next
to the proposed location is a vacant lot used as a garden by the occupants of the house next to it.
Behind the garden is a fenced church playground which is 310 feet from the proposed location. Next
to the playground is the Brunson Baptist Church, located 420 feet from the proposed location to the
front door. Next to the church is the Brunson Elementary School.
9. The Brunson Baptist Church and the Department protested the application on the basis
of the location's proximity to the church and school. In addition to the Department's measurements,
the church presented different figures based upon measurements conducted by members of the
church. The church measured from the closest point of the property of the proposed location to the
closest point of the playground; the church property and the school property. According to its
measurements, the playground is 71 feet from the proposed location, the church is 158 feet away, and
the school is 225 feet away.
10. Brunson Elementary School initially protested the application but withdrew its protest
before the date of the hearing.
11. In support of the application, the mayor of the town of Brunson urged the issuance
of the permit. Brunson is a small town in which there has been no industry and no economic growth.
It is seeking new businesses and industries to expand its tax base and to provide employment for the
residents. Highway 278 is a well travelled road and there is a proposal to widen the highway.
12. Notice of the application was posted at the proposed location and published in The
People-Sentinel for the time period required.
CONCLUSIONS OF LAW
Based upon the Findings of Fact, I conclude, as a matter of law:
1. The Administrative Law Judge Division has jurisdiction to hear cases under the
Administrative Procedures Act. S.C. Code Ann. § 1-23-600 (Supp. 1995).
2. The Division has the powers, duties, and responsibilities of a hearing officer in
contested matter governing alcoholic beverages, beer and wine. S.C. Code Ann. § 61-1-55 (Supp.
1995).
3. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the statutory requirements for the
issuance of beer and wine permits. Among the criteria is the prohibition against the issuance of a beer
and wine permit unless the proposed location is a proper one taking into consideration the proximity
to residences, schools, playgrounds and churches.
4. Unlike the requirements for a liquor license, there is no statutorily mandated distance
between the proposed location and churches, schools, playgrounds or residences. S.C. Code Ann.
§ 61-9-320(6) (Supp. 1995) provides that "the Department may consider, among other factors, as
indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches."
Because there is no prescribed distance, the issue of which distances should be used need not be
reached.
5. The Department seeks denial of the permit based upon William G. Byers v. S.C. ABC
Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991) in which the state Supreme Court held that "proximity
of a location to a church, school or residence is a proper ground, by itself, on which the [Department]
may find the location to be unsuitable and deny a permit for the sale of beer or wine.... (Emphasis
added) Id. 407 S.E.2d at 655. This case does not require a determination of unsuitability when a
proposed location is in proximity to a church, school, playground or residence. Proximity is one of
the many factors that may be used to deny the permit.
6. The determination of suitability of a location is not necessarily a function solely of
geography. It involves 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); Schudel v. S. C. ABC Comm'n, 276 S.C. 138, 276
S.E.2d 308 (1981).
7. Although "proper location" is not statutorily defined, broad discretion is vested in the
Division in determining the fitness or suitability of the proposed business location of an applicant for
a permit to sell beer and wine. Ronald F. Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705
(Ct. App. 1984).
8. In balancing the nature of the business with the concerns of the community, there has
been no evidentiary showing that the present location is unsuitable or that the issuance of an off-premise beer and wine permit would affect the residents' safety, create traffic problems, or otherwise
have an adverse impact on the community. The proposed location and the nature of the business
activity are suitable and proper given the desire for commercial development of the area and the
current commercial activity of Highway 278. There is no reason to deny the issuance of the permit
solely on the basis of proximity to the church and school.
9. The fact that church protests the issuance of the permit and license is not a sufficient
reason by itself to deny the application. See 45 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1995);
48 C.J.S. Intoxicating Liquors § 119 (1981).
10. The applicant and the location are suitable for the issuance of an off-premise beer and
wine permit.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the Department shall issue an off-premise beer and wine permit to Frankie
O. Keel and Anderson Oil Co. for Gas Garden #7 to be located at 101 South Railroad West, in
Brunson, South Carolina, upon the payment of the appropriate fees.
AND IT IS SO ORDERED.
___________________________
ALISON RENEE LEE
Administrative Law Judge
March _____, 1996
Columbia, South Carolina. |