SC Administrative Law Court Decisions

The Petitioner, Rosalind R. Hill (Hill) of Murrells Inlet, South Carolina filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit and a nonprofit private club minibottle license for 4491 Hwy. 17 S. Business, Murrells Inlet, South Carolina. Lee and Whitney Hewitt (protestants) filed a protest seeking to prevent DOR from granting the permit and license. A hearing on the application was required since "[n]o application for [a] beer and wine permit will be approved by the Alcoholic 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). As to mini-bottles, the same rule applies under 23 S.C. Code Regs. 7-3 (Supp. 1995). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the hearing required by Regs. 7-90 and 7-3 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 with restrictions. 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).

Does Hill meet the statutory requirements of S. C. Code Ann. §§ 61-9-320 and 61-5-50 (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:

Hill asserts she meets all the requirements of the statute. DOR states that due to the protest, no permit or license can be granted and that were it not for the protest, DOR would have granted the permit and license. The protestants assert that while the permit and license may be proper, it is appropriate to place restrictions upon the use of the permit and license in order to accommodate a nearby residence.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about November 5, 1995, Hill filed an application with the Department of Revenue for an on-premises beer and wine permit and a nonprofit private club minibottle license.

2. The application is identified by DOR as AI #105791 and AI #105792.

3. The proposed location and the place where the beer and wine permit and the mini-bottle license will be utilized is 4491 Hwy. 17 S. Business, Murrells Inlet, South Carolina.

4. The applicant operates a bona-fide nonprofit organization.

5. A protest to the application was filed by Lee and Whitney Hewitt.

6. Except for the protest, DOR would have issued the permit.

7. The hearing on this matter was held February 26, 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. Hill has resided in South Carolina since January 1, 1995.

13. Hill holds a valid South Carolina driver's license.

14. Hill currently resides at 510-B Juniper Drive, Surfside Beach, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit and the mini-bottle license.

15. Hill 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

16. Hill has never had a beer and wine permit revoked.

e. Age

17. Hill's date of birth is February 17, 1942.

18. Hill is over twenty-one years of age.

f. Proposed Location

19. The prior owner of the existing location operated with an on-premises beer and wine permit and a mini-bottle license for six years.

20. The prior owner's permit and license carried a restriction that the location must close no later than 2:00 a.m.

21. The applicant will continue the same business as the prior owner.

22. Several locations in the immediate area hold on-premises beer and wine permits and mini-bottle licenses.

23. The location is adequately served by the traffic route of Highway 17.

24. The location is not within the city limits and is not within 500 feet of any church, school, or playground.

25. The vicinity is predominately commercial with some scattered residential housing in the area.

g. Notice

26. Notice of the Hill application was published in the The Georgetown Times, a newspaper published and distributed in Georgetown County, with notice published on October 12, October 19, and October 26, 1995.

27. Notice of the Hill application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Georgetown County.

28. Hill gave notice to the public by displaying a sign for fifteen days at the site of the proposed business.

29. Hill 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 except for the proposed location. While the location is not within 500 feet of a school, church, or playground under the mini-bottle law of S.C. Code Ann § 61-3-440 (Supp. 1995), there are numerous factors to consider for a beer and wine permit. 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. William Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992). 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, 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 dependent upon the facts 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 six (6) years and was restricted to closing at 2:00 a.m. The new owner will continue the former operations. Additionally, the distances to churches, schools and playgrounds is not a problem. Finally, there are already similar establishments in the vicinity such that the granting of the permit and the license will not significantly change the overall character of the area.

The statutes at S.C. Code Ann. § 61-5-190 (Supp. 1995) and the regulations at 23 S.C. Code Ann. Regs. 7-88 (1976) authorize the imposition of restrictions to licenses and permits. The protestants expressed concern about the enjoyment of their property in relation to the use of the permit and license and suggest that restrictions are in order. While the area is predominantly commercial with several establishments in the area already having mini-bottle licenses and beer and wine permits, I find it is appropriate to provide safeguards for residences in this highly developed commercial area. At the hearing Hill in open court agreed to the following three restrictions on the permit and license:

First, the location must close no later than 2:00 a.m. Second, the applicant must prohibit (except for deliveries, fire exit, and emergency purposes) the use of any entrance or exit to the building other than the front. Third, the applicant must take affirmative steps to prohibit, on its own property as well as on the property of nearby residences, any littering or loitering.

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 operates a bona fide nonprofit organization. S.C. Code Ann. § 61-5-50(1) (Supp. 1995).

2. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995); § 61-5-50(2) (Supp. 1995)

3. 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 her principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995); § 61-5-50(7) (Supp. 1995)

4. 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).

5. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995); 61-5-50(6) (Supp. 1995).

6. The applicant's location is not within 500 feet of a church, school, or playground. S.C. Code Ann. § 61-5-50(3) (Supp. 1995); § 61-3-440 (Supp. 1995).

7. 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).

8. 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).

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); 61-5-50(4) and (5) (Supp. 1995).

10. Licenses and permits may be granted with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Ann. Regs. 7-88 (1976).

11. Considering all relevant factors, with restrictions, the proposed location is a proper location for a beer and wine permit and a mini-bottle license. S.C. Code Ann. § 61-9-320(6) (Supp. 1995); 61-5-50 (3) (Supp. 1995).

12. With restrictions, the applicant meets the requirements for the issuance of a mini-bottle license pursuant to S.C. Code Ann. § 61-5-50 (Supp. 1995).

13. With restrictions, 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).

The application of Rosalind R. Hill for an on-premises beer and wine permit and a mini-bottle license at 4491 Hwy. 17 S. Business, Murrells Inlet, South Carolina shall be granted upon Hill's signing an agreement with DOR to adhere to the stipulations which she agreed to in open court and which stipulations are as set out below:

First, the location must close no later than 2:00 a.m. Second, the applicant must prohibit patrons and club members from using (except for deliveries, fire exit, and emergency purposes) any entrance or exit to the building other than the front. Third, the applicant must take affirmative steps to prohibit, on its own property as well as on the property of nearby residences, any littering or loitering.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 27th day of February, 1996

Columbia, South Carolina