SC Administrative Law Court Decisions

The Petitioner, Gerald Brooks (Brooks) of Loris, South Carolina filed with the Respondent, South Carolina Department of Revenue and Taxation (DOR), an application for an on-premises beer and wine permit for #2 Marina Side Drive, Yacht Cove, Hilton Head, South Carolina. Robert C. Hedtke, Pastor, and Greg Beste, Chairman, of Island Lutheran Church; and Howard H. Sale, III, Pastor and Frank Conder, President of Church Council, of Christ Lutheran Church, filed a protest seeking to prevent DOR from granting the license. A hearing on the application is required since "[n]o application for [a] beer and wine permit will be approved by the Alcohol 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). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the hearing required by Regs. 7-90, 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 subject to 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 Brooks meet the statutory requirements of S. C. Code Ann. § 61-9-320 (Supp. 1995) for the granting of an on-premises beer and wine permit?

III. Analysis

1. Positions of Parties:

Brooks asserts he meets all the requirements of the statute. DOR states that due to the protest, no permit could be granted and it awaits the outcome of this hearing. The protestants assert only one basis for denial of the permit: that the proposed location is not proper.

2. Findings of Fact:

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

a. General

1. On or about November 17, 1995, Brooks filed an application with the Department of Revenue for an on-premises beer and wine permit.

2. The application is identified by DOR as AI #106064.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is #2 Marina Side Drive, Yacht Cove, Hilton Head, South Carolina.

4. The nature of the business is that of a restaurant doing business as Hooters of Hilton Head, Inc.

5. A protest to the application was filed by Pastor Robert C. Hedtke and Chairman Greg Beste on behalf of Island Lutheran Church and by Pastor Howard H. Sale, III, and Church Council President Frank Conder on behalf of Christ Lutheran Church.

6. Except for the unresolved issue of suitability of location, DOR would have issued the permit.

7. The hearing on this matter was held April 1, 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. Brooks was born in South Carolina and has resided in South Carolina since his birth.

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

14. Brooks currently resides at 4610 Circle Drive in Loris, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

15. Brooks 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 Of Beer or Wine Permit

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

e. Age

17. Brooks' date of birth is November 20, 1935.

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

f. Proposed Location

19. The proposed location will operate as a restaurant with approximately 65% of its sales from food, 5% from merchandise, and 30% from beer and wine.

20. There is no evidence of prior criminal activity at the proposed location.

21. Christ Lutheran Church is approximately 250 yards from the proposed location.

22. The church is separated from the proposed location by Highway 278, a four lane traffic artery having a center median covered in vegetation including grass and bushes.

23. The proposed location has vegetation separating the building from Highway 278.

24. Beer, wine and mini-bottles are sold for on-premises consumption by six nearby entities known as Hilton Head Diner, Tony Roma's, Leibeaux's, Longhorns, Rick's, and Nick's Seafood.

25. A nearby convenience store known as Circle K has an off-premises permit for the sale of beer and wine.

26. The location is adequately served by the traffic route of Highway 278 and Yacht Cove.

27. The area is predominately commercial.

28. The proposed location is a proper location.

g. Notice

29. Notice of the Brooks application was published in the The Island Packet, a newspaper published and distributed in Beaufort County, with notice published on October 26, November 2, and November 15, 1995.

30. Notice of the Brooks application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Hilton Head.

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

32. Brooks 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 as to the applicant's satisfying the requirements of good moral character, being a legal resident of South Carolina for 30 days, having a principal place of abode in South Carolina for 30 days prior to filing the application, not having had a beer or wine permit revoked within two years of the date of the current application, being at least twenty-one years of age, and providing proper notice of the application by way of newspaper and the display of signs. Rather, the only matter disputed is whether the proposed location is a proper one.

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). 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 factual 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 with restrictions. There is no evidence of criminal activity at the location nor of any traffic concerns at the location. Additionally, it is significant that there are numerous existing establishments in the area that sell beer, wine and minibottles for on-premises consumption. Of the existing establishments, several are restaurants. The applicant's on-premises beer and wine permit will not present an impact on the neighborhood sufficient to cause a change in the character of the community. Rather, the area is already highly commercial and the establishment of a restaurant is compatible with the existing community structure.

While the area is highly commercial in nature, for at least 14 years a church has conducted its worship services across the street from the proposed location. To assure the continued enjoyment of the church's property by the church members, the applicant agreed in open court to two restrictions upon its permit. First, it is appropriate to maintain a vegetation buffer along the front of the proposed location so as to diminish the view from the church to the building which will be constructed at the proposed location. Second, to assure normal Sunday morning worship activities, the proposed location will not open on Sunday any earlier than 12:00 p.m. (Noon)

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 possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995).

2. 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 his principal place of abode in South Carolina. S.C. Code Ann. § 61-9-320(2) (Supp. 1995).

3. 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).

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

5. 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).

6. 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).

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

8. Considering all relevant factors, with restrictions as to a vegetation buffer and opening hours on Sunday, the proposed location is a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

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).

10. 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 for an on-premises beer and wine permit at #2 Marina Side Drive, Yacht Cove, Hilton Head, South Carolina shall be granted upon Brooks signing an agreement with DOR to adhere to the stipulations which he agreed to in open court and which stipulations are as set out below:

First, the location must not open any earlier than 12:00 p.m. (Noon) on Sunday. Second, the applicant must maintain a vegetation buffer along the front of the proposed location so as to diminish the view from the church to the building which will be constructed at the proposed location.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 2nd day of April, 1996.