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 Song S. Lee, Lee Enterprises of Columbia, Inc., d/b/a Lee's Party Shop #1
("applicant") for an off-premise beer and wine permit (AI 106104) and a retail liquor license (AI
106105) at 347A South Harden Street and 347B South Harden Street, Columbia, Richland County,
South Carolina ("locations").
A hearing was held on March 12, 1996, at the Administrative Law Judge Division
offices, Columbia, South Carolina pursuant to a protest letter filed on behalf of the Rosewood
Community Council ("protestant") by Mel Jenkins, President. The issues considered were: 1) the
suitability of the proposed locations, and 2) the nature of the proposed business activities. The
protestant testified as well as Lt. Kevin Mooney of the Columbia Police Department and Eugene
Jordan, administrator and Chairman of the Board of Deacons of Rosewood Baptist Church. Upon
motion filed, the South Carolina Department of Revenue and Taxation ("Department") was excused
from appearing at the hearing since it took no position on the issues addressed in the protest.
The Petitioner's application for an off-premise beer and wine permit is granted with
restrictions. The application for the retail liquor license is denied.
FINDINGS OF FACT
After consideration and review of all the evidence and testimony, 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 protestants.
3. The applicant is seeking an off-premise beer and wine permit and a retail liquor license
for stores respectively located at 347A and 347B, South Harden Street, Columbia, Richland County,
South Carolina.
4. The applicant is 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 State, a newspaper of general circulation in the local area where the applicant proposes
to engage in business.
6. The applicant, within two (2) years before the date of application, has not had a beer
and wine permit revoked nor within five (5) years before the date of application, had a liquor license
revoked.
7. The applicant is a legal resident and has been a legal resident of the United States and
South Carolina for at least thirty (30) days before the date of the application and has maintained her
principal place of abode in South Carolina for at least thirty (30) days before the date of application.
8. The applicant is of good moral character and repute.
9. Notice of the applications have been given by displaying a sign for a minimum of
fifteen (15) days at the site of the proposed locations.
10. The locations are situated in a residential-commercial area within the city limits of
Columbia, South Carolina.
11. There are schools and playgrounds in the general locale of the location, however none
are within 300 feet.
12. The applicant recently obtained an off-premise beer and wine permit and a retail liquor
license from the Department for two separate stores at a location on Farrow Road in Richland
County, South Carolina. A manager has been employed to assist in the operation at those stores.
13. The applicant and her husband Chang H. Lee, an adult son, and a sister, Hyang H.
Lee, work at these stores. The Lees maintain a hands-on operation at these stores.
14. The applicant and Hyang H. Lee are the sole stockholders of Lee Enterprises of
Columbia Inc. They wish to purchase the two stores on South Harden Street from the present
owners, Herbert Simpson and Eddie Simpson, if the permit and license applied for herein are granted.
15. The Simpsons have operated the two stores at the proposed location and have held
both an off-premise beer and wine permit and a retail liquor license for the last 24 years.
16. The proposed location is at the corner of South Harden Street and Rosewood Drive
in the Rosewood community of Columbia, South Carolina.
17. The Rosewood Community Council (Council) is comprised of residents in the
Rosewood community who want to shape it into a safer and more attractive neighborhood in which
to live.
18. Melvin E. Jenkins, President of the Council, is a resident of the community, residing
at 2334 Montgomery Avenue.
19. Although the Council is not necessarily opposed to the sale of, usage and consumption
of alcoholic beverages, it monitors and opposes permit/license applications or renewals at locations
which its members feel, due to their closeness to schools, churches or playgrounds or for various
other reasons, are not suitable for the neighborhood or its enrichment.
20. In the past, the Columbia Police Department has received occasional complaints
concerning loitering and littering at the location.
21. Many school children from both elementary and middle schools walk by the location
daily when their schools are in session.
22. There is a bus stop at the location.
23. Occasionally individuals consume beverages from containers inside paper bags while
standing outside and/or at the front of the location.
24. There is an occasional accumulation of trash and litter at the location.
25. The Rosewood Baptist Church is located approximately four blocks from the location.
The Board of Deacons of the church, on behalf of its members, also objects to the issuance of the
license and permit. The church contends there are too many locations in the neighborhood which
presently that sell alcoholic beverages.
26. Eugene Jordan, a retired gentleman of 67 years, is the Administrator and Chairman
of the Rosewood Baptist Church Board of Deacons and lives on Beltline Boulevard, some four miles
from the location.
27. According to the sketch of the location by the assigned South Carolina Law
Enforcement Division (SLED) agent, there are residences on each side of and across Rosewood Drive
from the location. Also, there are commercial or business properties across South Harden Street and
across Rosewood Drive. Grace Church, as drawn on the sketch is either 226 feet or 247 feet in
distance from the location.
28. Rosewood Drive is heavily commercialized and is a heavily travelled road.
DISCUSSION
This case involves the construction and application of both S.C. Code Ann. § 61-3-440 and
S.C. Code Regs. 7-55 and 7-11. These sections 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. The distance from the place of entrance to either the retail
liquor store or the party store "following the shortest route of ordinary pedestrian or vehicular travel
along the public thoroughfare" (Rosewood Drive) to the nearest point of entrance to the grounds of
the church is less than 300 feet. The entrance to the grounds of the church is that point on the
sidewalk adjoining Rosewood Drive from which one may walk directly to the church entrance or
doorway.
However, the last paragraph of § 61-3-440 provides that these "restrictions shall not apply
to the renewal of licenses existing on July 10, 1960 or locations then existing. Petitioner argues that
this provision in § 61-3-440 is applicable both to a renewal request for a license that had been issued
on or before July 10, 1960 and to any application, whenever made, if for a location existing and
licensed at the time application is made.
It seems clear that the intent of the legislature, when it passed Act 804 on May 24, 1960, was
to "grandfather" only those locations licensed on or before July 10, 1960. The Act's effective date
is July 10, 1960. To interpret this clause as Petitioner argues would deny the applicability of this code
section except in those instances where an application is sought for a license at a location unlicensed
at the time the application is filed. To accept this interpretation would be violative of legislative
intent.
Since this prohibition on grants of licenses does not apply to the determination of whether a
beer or wine permit should be issued, it becomes necessary to address protestants' concerns of
saturation, i.e...sufficient outlets for beer and wine purchases in the general vicinity. Without any
credible evidence placed into the record that this location, if permitted for beer and wine sales, would
create a saturation of permitted locations in the general locale or have a detrimental impact upon the
well-being of the community or create crime or traffic hazards, the protestant(s) have not met that
burden of proof sufficient to convince this tribunal that the beer and wine permit request should be
denied.
I am convinced the beer and wine permit request should be granted; however, the retail liquor
license application should be denied based upon the distance requirements of § 61-3-440.
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 place of
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 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 the 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. § 61-9-320 (Supp. 1995) sets forth the requirements for the issuance
of a beer and wine permit which provides in part:
No permit authorizing the sale of beer or wine may be issued unless:
1. The applicant, any partner or co-shareholder of the applicant, and each agent, employee and servant of the applicant to be employed on the licensed premises, are of good moral character.
2. The retail applicant is a legal resident of the United States and has been a legal resident of this Sate for at least thirty days before the date of application and has maintained his principal
place of abode in South Carolina for at least thirty days before the date of application.
3. The wholesale applicant is a legal resident of the United States and has been a legal
resident of the United States and has been a legal resident of this State for at least thirty days
before the date of application or has been licensed previously under the laws of this State.
4. The applicant, within two years before the date of application, has not had revoked a beer
or a wine permit issued to him.
5. The applicant is twenty-one years of age or older.
6. The location of the proposed place of business of the applicant is in the opinion of the
department a proper one. The department may consider, among other factors, as indications
of unsuitable location the proximity to residences, schools, playgrounds and churches.
7. Notice of application has appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of the county, city, or community in which the applicant proposes to engage in business.
8. Notice has been given by displaying the required sign for fifteen days at the site of the proposed business.
5. S.C. Code Ann. § 61-3-440 (Supp. 1995) states that the Department shall not issue
certain licenses to a place of business within a certain distance of a church, school or
playground; however, locations for which beer and wine permits are requested are not subject to
those specific restrictions.
6. 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).
7. 23 S.C. Code 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.
8. 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.
9. S.C. Code Regs. 7-55 (1976) incorporates verbatim the language of Regs. 7-11, with
the addition of an introductory paragraph.
10. No schools or playgrounds are within the proscribed proximity to render the proposed
location unsuitable for a retail liquor license. However, a church is within 300 feet.
11. 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 Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977).
12. A license may not be issued pursuant to 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.
13. 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 Comm'n, 281 S.C. 566, 316 S.E.2d
705 (Ct. App. 1984).
14. 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).
15. The determination of suitability of a location for issuance of a permit 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). The proximity of the location to
residences, churches, schools and playgrounds can be a proper ground by itself to deny a permit.
Moore v. S.C. Alcoholic Beverage Control Comm'n, 208 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 import of the proposed location upon traffic in the area can be a consideration. Palmer v. S.C.
Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). The character
of an entire area as rural versus commercial may be considered. Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973). The proximity of the location to children may 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. Whether there is adequate and proper police protection for an intended location is also
a proper consideration. Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972). Further, any objections
to the permit grant must be based upon adequate factual support and not on opinion and conjecture.
16. 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. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943).
17. Having considered all factors as addressed above applicable to both the issuance of
a retail store liquor license and an off-premise beer and wine permit, and having given due weight to
the evidence in the record and the testimony, I conclude that the beer and wine permit should be
granted with restrictions. Nothing in the record indicates any problems at the party shop location
during the past 24 years which would show that the location is no less suitable now than during that
period for the sale of beer and wine. In this instance, the Petitioner expects to continue the operation.
Some clean-up of litter and trash outside the location needs to be done and monitored more closely
in the future as well as controlling any loitering outside the location. No evidence was introduced
to show that the closeness or proximity to nearby residences and a church would present any
problems. I further conclude that the request for a retail liquor license does not meet the distance
requirement contained in S.C. Code Ann. § 61-3-440 and therefore should be denied.
ORDER
Based upon the above Findings of Fact, Discussion and Conclusions of Law, it is hereby:
ORDERED that the application of Song S. Lee, Lee Enterprises of Columbia, Inc., d/b/a
Lee's Party Shop #1 for a retail liquor license at 347A South Harden Street, Columbia, Richland
County, South Carolina is denied. However, the application for an off-premise beer and wine permit
for the premises located at 347B Harden Street, Columbia, Richland County, South Carolina is
granted with the following restrictions, upon the applicant signing a written agreement to be filed with
the South Carolina Department of Revenue and Taxation to adhere to the stipulations set forth below:
1. There will be no advertising of beer and wine outside the building at the location.
2. Applicant and/or her employees and agents will prevent loitering and the consumption
of beer and/or wine by anyone in the parking lot and exterior areas of the proposed location.
3. Applicant and/or her employees and agents will clean up all litter and trash at the
location immediately and keep all exterior areas clean from such trash and litter at all times.
4. The location will conform to all county codes and ordinances.
IT IS FURTHER ORDERED that a violation of any one of the above conditions is
considered a violation against the permit and may result in a fine, suspension, or revocation.
IT IS FURTHER ORDERED that the Department of Revenue and Taxation shall issue the
beer and wine permit upon payment of the required fees and costs by the applicant.
AND IT IS SO ORDERED.
______________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 22, 1996 |
