ORDERS:
ORDER AND DECISION
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. (1986 & Supp. 1995) upon an application for an on-premises beer and wine permit for 44 Satterwhite Street, Whitmire, South Carolina, by Terry
Whitener, Gentlemen Social Club, d/b/a Gent's Lounge, filed with the South Carolina Department
of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held on March 20,
1996. The issues considered were: (1) the suitability of the proposed business location; and
(2) the nature of the proposed business activity. Based upon the finding and conclusion that the
proposed location is unsuitable, the permit application is denied.
FINDINGS OF FACT
By a preponderance of the evidence, I find:
(1) Petitioner seeks an on-premises beer and wine permit for a location in Newberry
County, at 44 Satterwhite Street, Whitmire, South Carolina, having filed an application with
DOR, AI #104416.
(2) Notice of the time, date, place, and subject matter of the hearing was given to all
parties and protestants.
(3) The DOR file was incorporated into the record of the hearing.
(4) The proposed location is in a predominately rural residential area of unincorporated
Newberry County, near the Town of Whitmire.
(5) Petitioner has operated the proposed location as a restaurant since November, 1995.
(6) The proposed location was previously owned and operated by Petitioner's uncle as
Epps Diner for approximately 20 to 30 years, up until 1991.
(7) When operated as Epps Diner, the proposed location was licensed to sell beer and
wine.
(8) The proposed location is located within four hundred feet (400') of nine residences.
(9) The proposed location is located on Satterwhite Street, within approximately four
hundred sixty-two feet (462') of Carver Elementary School.
(10) Satterwhite Street is a one-way thoroughfare leading from Highway 121 to Carver
Elementary School.
(11) Carver Elementary School is a Newberry County public school with an enrollment of
142 students, grades 4-6.
(12) Approximately 40-50 students walk to and from school daily on Satterwhite Street
to homes in the immediate vicinity of the proposed location.
(13) Carver Elementary School is scheduled to close at the end of the 1995-96 school
year; however, Carver Principal Timothy E. Turner testified that the school facilities will be used
for educational purposes after it ceases to be an elementary school.
(14) Carver Elementary School has been the site of frequent vandalism and break-ins.
(15) The Newberry County Sheriff's Department received thirty-five calls in 1995 for
incidents within .5 mile of the proposed location, seven of which were on Satterwhite Street.
(16) An arrest was made a the proposed location on January 16, 1995, when shots were
fired during a private party.
(17) The community surrounding the proposed location is plagued by criminal activity.
(18) The response time of the Newberry County Sheriff's Department to the proposed
location could be as much as one hour.
(19) The applicant is over twenty-one (21) years of age, is a citizen of the State of South
Carolina, and has maintained his principal residence in South Carolina for more than one year.
(20) The applicant has not had a permit revoked in the last thirty (30) days.
(21) Notice of the application appeared in a newspaper of general circulation in the area
of the proposed location for three (3) consecutive weeks and was posted at the proposed location
for fifteen (15) days.
(22) The applicant, who is the manager of the business, is of suitable character and
temperament to hold a beer and wine permit.
(23) The proposed location is unsuitable for the sale of beer and wine.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude, as a matter of law, the following:
(1) The South Carolina Administrative Law Judge Division is empowered to hear this
case pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and Chapter 23 of Title I of the 1976
Code, as amended.
(2) S.C. Code Ann. §§ 61-9-310 and 61-9-320 (Supp. 1995) provide the criteria to be
met for issuance of a beer and wine permit.
(3) Except for establishing that the proposed location is a proper one for the sale of beer
and wine, Petitioner meets all statutory requirements set forth in S.C. Code Ann. §§ 61-9-310 and
61-9-320 (Supp. 1995).
(4) As the trier of fact, an administrative law judge is authorized to determine the fitness
or suitability of the proposed business location of an applicant for a permit to sell beer and wine
using broad but not unbridled discretion. Ronald F. Byers v. S.C. ABC Commission, 281 S.C.
566, 316 S.E.2d 705 (Ct. App. 1984).
(5) 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).
(6) The proposed location is unsuitable for the sale of beer and wine because of the
cumulative effect of the following factors: the rural residential nature of the surrounding
community; the close proximity of residences and a school; the existence of students and small
children in the area; the history of vandalism and criminal activity in the immediate vicinity; the
inability of law enforcement to respond quickly to the area; and the overall adverse impact on the
community.
(7) The proximity of residences, schools, playgrounds, or churches is a proper ground by
itself to deny a permit to a location. William Byers v. S.C. A.B.C. Commission, 305 S.C. 243,
407 S.E.2d 476 (Ct. App. 1984).
(8) If the rural residential character of the immediate vicinity would be adversely affected
by the sale of beer and wine at the proposed location, denial is appropriate. Palmer v. S.C. ABC
Commission, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1985); Roche v. S.C. ABC Commission,
263 S.C. 451, 211 S.E.2d 243 (1975).
(9) The existence of numerous children in the area of the proposed location is grounds to
find a location unsuitable for the sale of beer and wine. See Palmer v. S.C. ABC Commission,
282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1985).
(10) Strain upon police to adequately protect the community is a legitimate factor for
denial of a beer and wine permit. Moore v. S.C. ABC Commission, 308 S.C. 167, 417 S.E.2d
555 (1992).
ORDER
IT IS THEREFORE ORDERED that the on-premises beer and wine permit applied for
is denied.
________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
April 2, 1996
Columbia, South Carolina |
