ORDERS:
ORDER
STATEMENT OF THE CASE
This matter came before me pursuant to S.C. Code Ann. §§61-1-55 et seq. (Supp. 1995) and
S.C. Code Ann §§1-23-310 et seq. (Rev. 1986 and Supp. 1995) for a hearing pursuant to the
application of Ray T. and Linda P. Matthews, d/b/a Corks Fine Wines and Spirits ("applicants") for
a retail liquor license (AI 106532) at 5051 Calhoun Memorial Highway, Suite J, Easley, Pickens
County, South Carolina ("location").
A hearing was held on March 8, 1996, at the Pickens County Courthouse, Pickens South
Carolina pursuant to a protest letter filed by Reverend Charles David Gallamore, Pastor of and on
behalf of the Rock Springs Baptist Church, Easley, South Carolina ("protestant"). The issues
considered were: 1) the suitability of the proposed location, and 2) the nature of the proposed
business activity. The protestant testified as well as Keith Galloway, a member of the church. Some
twenty plus additional members of the church were in the courtroom, supporting their pastor and the
church's position. Upon motion filed, the South Carolina Department of Revenue and Taxation
("Department") was excused from appearing at the hearing.
Petitioner's application request for a retail liquor license is granted.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony of the applicant, and having
judged his credibility, by a preponderance of the evidence, I make the following findings:
1. This Division has personal and subject matter jurisdiction.
2. Notice of the date, time, place and nature of the hearing was timely given to all parties
and the protestants.
3. The applicants are seeking a retail liquor license for a store located at 5051 Calhoun
Memorial Highway, Suite J, Easley, Pickens County, South Carolina.
4. The applicants are over twenty-one (21) years of age.
5. Notice of the application has appeared at least once a week for three (3) consecutive
weeks in The Easley Progress, a newspaper of general circulation in the local area where the
applicants propose to engage in business.
6. The applicants, within two (2) years before the date of application, have not had a beer
and wine permit revoked nor have they within five (5) years before the date of application, had a
liquor license revoked.
7. The applicants are and have been legal residents of the United States and South
Carolina for at least thirty (30) days before the date of application and have maintained their principal
place of abode in South Carolina for at least thirty (30) days before the date of application.
8. The applicants are of good moral character and repute.
9. Notice of the application has been given by displaying a sign for a minimum of fifteen
(15) days at the site of the proposed location.
10. The location is situated in a largely concentrated commercial area within the city limits
of Easley, South Carolina. However, residential areas are close by.
11. Applicants are presently licensed by the Department and have held a permit since
November, 1994 to sell beer and wine at the location. Applicants' location is carpeted, up-scale and
services a high-end clientele. Their present business is not operated as a party shop.
12. Applicants intend to continue their tradition in the quality of alcohol sold and the client
base served. Their business, if licensed, will not carry pint or half-pint containers of alcohol.
13. The hours of operation at the location will be from 11:00 a.m. to 7:00 p.m., Monday
through Saturday.
14. The location is in a small strip shopping mall and other businesses are located nearby.
Also, two restaurants (Fatz and Applebee's) adjoin this shopping center in the general locale, both
of which hold on-premise beer and wine permits and on-premise sale and consumption (mini-bottle)
licenses.
15. The Rock Springs Baptist Church and all its properties front on a two-lane road
known as Dayton Street Road (S.C. Highway S-39-136). Across this highway is the location and its
parking areas. The photographs submitted by the protestant depicted the church, the family life
center, applicants' store, parking areas of the church and the shopping center, together with the
highway and grassy areas adjoining the parking areas.
16. There are no sidewalks along Dayton Street Road.
17. The location, if measured in a straight line from its entrance to the edge of the church
parking lot, which is across and runs parallel with Dayton Street Road, is approximately 138 to 150
feet away. However, the distance if measured from the proposed location's entrance, through its
parking lot, to and across the Dayton Street Road and then along the roadway to the entrance to the
church's parking lot, is approximately 318 feet as measured by SLED agent David Gladden.
18. The concerns of the protestant and members of the Rock Springs Baptist Church are
several, including: 1) the ethical or moral belief that drinking and consuming alcoholic beverages is
wrong, and a desire to protest any sale of such, and 2) the closeness of the proposed location to the
church's properties which in its opinion constitutes a violation of § 61-3-440 (Supp. 1995).
19. Applicant/Linda P. Matthews manages the location and will continue in that role in
the future. She is the sole employee.
20. Traffic at the location consists primarily of individuals who travel to the shopping
center by vehicle, shop, return to their vehicle, and exit through and out the parking areas.
21. Dayton Street Road is a heavily traveled highway. It is not safe presently for children
to cross the road at the general vicinity of the proposed location and the Rock Springs Baptist
Church's family life center.
22. The point of entrance to the property of the Rock Springs Baptist Church in closest
proximity to the front entrance of the proposed location, computed by following the shortest route
of pedestrian or vehicular travel along the public thoroughfare is 318 feet.
DISCUSSION
The basic focus in this case involves an interpretation of S.C. Code Ann. § 61-3-440 (Supp.
1995) and S.C. Code Regs. 7-55 and 7-11(1976) which mandate that no retail liquor license will be
issued to a location within a municipality which is within 300 feet of a church, school or playground.
The facts herein are undisputed. If the allowable distance is measured in a straight line from
the entrance of the proposed location to the nearest point of entry to the church grounds, then the
grant of the license must fail. However, if the shortest route is determined by measuring from the
entrance of the proposed location through the parking lot, through the exit road from the parking area
and then along Dayton Street Road to the entrance into the church parking lot, then the 300 foot
limitation is met since that distance as measured by South Carolina Law Enforcement Division
(SLED) agent David Gladden is 318 feet.
In this instance a clear interpretation of the statute requires the distance to be measured
through the parking area in front of the location, along the road exiting the parking area and to a
point on Dayton Street Road from which a straight line can be drawn to the entrance of a church
facility (gym). The regulation states that in measuring distances, one must follow the shortest route
of ordinary pedestrian or vehicular traffic along the public thoroughfare to the nearest point of
entrance to the church.
No testimony was presented at the hearing that pedestrians ordinarily exit the proposed
location, pass along the sidewalk in front and cross the grassy median to reach the roadway. Rather,
there is little if any pedestrian traffic in this area along the Dayton Street Road because of the heavy
traffic count, and all vehicular traffic exits through the parking lot and the exit road to reach Dayton
Street Road.
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 1 of the 1976 Code of
Laws, as amended.
2. S.C. Code Ann. § 61-3-420 (Supp. 1995) provides that no person is eligible for a
license under this Chapter, Chapter 7 and Article 3 of Chapter 13, if he or the person who will have
actual control and management of the business proposed to be operated:
(1) is less than twenty-one years of age:
(2) is not a legal resident of the United States and has not been a resident of South Carolina
for at least thirty days before the date of application and has maintained his principal abode
in South Carolina for at least thirty days before the date;
(3) is not of good repute; or
(4) has had a license under this or another statute regulating the manufacture or sale of
alcoholic liquors which has been revoked within the period of five years next proceeding the
filing of the applications.
3. S.C. Code Ann. § 61-3-440 (Supp. 1995) prohibits the issuance of any liquor license
provided for in Chapter 3, 7 and Article 3 of Chapter 13, if the place of business is within three
hundred feet (300') of any church, school or playground situated within a municipality or within five
hundred feet (500') of any church, school or playground situated outside of a municipality. Such
distances shall be computed by following the shortest route of ordinary pedestrian or vehicular travel
along the public thoroughfare from the nearest point of the grounds in use as part of such church,
school, or playground, which, as used herein, shall be defined as follows:
(1) "Church," an establishment, other than a private dwelling, where religious services are
usually conducted;
(2) "School," an establishment, other than a private dwelling, where usual processes of
education are usually conducted; and
(3) "Playground," a place, other than grounds at a private dwelling, which is provided by the
public or members of a community for recreation.
4. S.C. Code Ann. § 61-3-425 (Supp. 1995) prohibits the issuance of a license under
Title 61 until the applicant presents to the Department a signed statement both from the Department
and the Internal Revenue Service showing the applicant does not owe the state or federal government
delinquent taxes, penalties or interest.
5. 23 S.C. Code Ann. Regs. 7-11 (1976) provides:
With respect to a church or a school, the distance shall be measured from the
entrance to the place of business by following the shortest route of ordinary
pedestrian or vehicular travel along the public thoroughfare to the nearest point of
entrance to the grounds of the church or school, or any building in which religious
services or school classes are held, whichever is the closer. The Alcoholic Beverage
Control Commission has determined that the grounds in use as part of the church or
school is restricted to the grounds immediately surrounding the building or buildings
which provide ingress or egress to such building or buildings and does not extend to
the grounds surrounding the church which may be used for beautification, cemeteries,
or any purpose other than such part of the land as is necessary to leave the public
thoroughfare and to enter or leave such building or buildings.
Only one entrance to the grounds of a church or school shall be considered,
to wit: the entrance to the grounds nearest an entrance to the church or school
building.
Where no fence is involved, the nearest entrance to the grounds shall be in a
straight line from the public thoroughfare to the nearest door.
The nearest point of the grounds in use as part of a playground shall be limited
to the grounds actually in use as a playground the grounds necessary for ingress or
egress to such grounds from the public thoroughfare.
6. S.C. Code Ann. Regs. 7-55 (1976) incorporates verbatim the language of Regs. 7-11,
with the addition of an introductory paragraph.
7. Regs. 7-11 and Regs. 7-55 do not impermissibly conflict with § 61-3-440. 1990 Op.
S.C. Att'y. Gen. No. 90-4 at 127.
8. No schools or playgrounds are within the proscribed proximity to render the proposed
location unsuitable.
9. A liquor license may be denied if, in the opinion of the fact finder, the applicant is not
a suitable person to be licensed. Wall v. S.C. ABC Commission, 269 S.C. 13, 235 S.E.2d 806
(1977).
10. A permit may not be issued under S.C. Code Ann. § 61-3-730 (Supp. 1995) if the
applicant is not a suitable person to be licensed; the place of business is not a suitable place; or a
sufficient number of licenses have already been issued in the state, municipality or community.
11. Whether there is adequate and proper police protection for an intended retail liquor
store is also a proper consideration. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972).
12. Although "proper location" is not statutorily defined, broad discretion is vested in the
trier of fact in deciding the fitness or suitability of a particular location. Fast Stops, Inc. v. Ingram,
276 S.C. 593, 595, 281 S.E.2d 118, 119 (1981).
13. 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).
14. Permits and licenses issued by the State for sale of liquor, beer, and wine are not rights
or property, but are rather privileges granted in the exercise of the police power of the State to be
used and enjoyed only so long as the restrictions and conditions governing them are complied with.
As the tribunal authorized to grant the issuance of a permit is also authorized, for cause, to revoke
it, that tribunal is likewise authorized to place restrictions or conditions on the permit or license. See
Feldman v. South Carolina Tax Commission, 203 S.C. 49, 26 S.E.2d 22 (1943).
15. Where the language of a statute is clear and unambiguous, there is no room for
construction and the terms of the statute must be given their literal meaning. Duke Power Co. v. S.C.
Tax Comm., 292 S.C. 64, 354 S.E.2d 902 (1977).
16. The evidence in the record is clear that the license should be granted. There are no
schools or playgrounds within 300 feet of the entrance to the location. Further, to deny the issuance
of this license would violate the clear interpretation of § 61-3-440 (Supp. 1995) and Regs. 7-11 and
7-55 which requires the measurement to begin at the location's entrance, and follow a pathway
ordinary pedestrian or vehicular traffic utilize to arrive at that point of entrance to the church property
which is directly in line with the closest entrance to a church building. Although this tribunal
understands the concerns of the membership of the Rock Springs Baptist Church, the Church has not
carried its burden in showing that the calculation of distance as computed by the SLED agent is in
error.
17. There has been no credible showing that the present location is unsuitable, is an unfit
location, that it would increase stress in terms of the residents' safety, create traffic problems, or that
a sufficient number of licenses had already been issued in its locale. Further, the proposed location
is suitable and proper for the issuance of the license, based upon the predominantly commercial nature
of the area.
18. I conclude that the applicants meet all of the statutory requirements for holding a retail
liquor license and that the proposed location is a proper one for granting the retail liquor license.
ORDER
Based upon the above Findings of Fact, Discussion and Conclusions of Law, it is hereby:
ORDERED that the application of Ray T. and Linda P. Matthews, d/b/a Corks Fine Wines
and Spirits for a retail liquor license at 5051 Calhoun Memorial Highway, Suite J, Easley, Pickens
County, South Carolina be granted.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation issue the license
for a retail liquor license upon satisfactory evidence shown by the applicants that they owe no state
or federal delinquent taxes, penalties or interest, and upon payment of the required fees by the
applicants.
AND IT IS SO ORDERED.
_____________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 20, 1996 |
