SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. § 61-1-55 (Supp. 1995) and

§§ 1-23-310, et seq. (1986 & Supp. 1995) upon an application for an on-premises beer and wine permit, alcoholic liqueurs cooking license, and business sale and consumption license for

121W. Palmetto Street, Florence, South Carolina, by Kiran H. Patel filed with the South Carolina Department of Revenue and Taxation (hereinafter referred to as "DOR"). A hearing was held in Florence at the City/County Complex on April 8, 1996. The Protestant-Intervenor church, admitted as a party without objection, opposed the issuance of the licenses and permit on the basis of proximity of the proposed location to the church. Also without objection, Ms. Ellen Shirley, manager of the Inn Downtown and an employee of the Petitioner, was allowed to present the Petitioner's case. Upon consideration of the relevant evidence and applicable law, the permit and license applications are granted.

The proposed location, The Inn Downtown, has been in operation for approximately thirty years in downtown Florence, operating as a hotel, restaurant and bar, and has been licensed to sell liquor, beer and wine for most or all of that time. It was recently purchased by Petitioner, who because of the change in ownership, is required to apply for alcoholic beverage licenses for the location in his own name. Ellen Shirley, the manager of the hotel for the past six years, will continue to manage the hotel under Petitioner's ownership.

First Baptist Church of Florence, the Protestant-Intervenor, is located less than 300 feet from the Inn Downtown. The church opposes the issuance of the permit and licenses sought by Petitioner on the basis that the proposed location is unsuitable. The church objects primarily because of the proximity of the location to the church, citing the minimum distance requirements contained in S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1995), the potential for alcohol-related hazards and crimes in the immediate area, and the church's opposition on moral grounds to the consumption of alcohol.

No evidence was presented to indicate that the proposed location, nor its employees, guests, or patrons have ever been the source of any law enforcement or safety problems in the area. By all accounts the establishment is well-managed and is likely to continue to be well-managed. Therefore, the focus of the decision of whether to grant or deny the applications is upon the applicability of the minimum distance requirements contained in S.C. Code Ann.

§§ 61-5-50 and 61-3-440 (Supp. 1995). Those statutes prohibit the licensure of a location within a municipality located less than three hundred feet (300') from any church, school, or playground; however, the minimum distance requirement applies only to those business establishments or locations established after November 7, 1972. See St. Philip's Episcopal Church v. S.C. ABC Commission, 285 S.C. 335, 329 S.E.2d 454 (Ct. App. 1985); 1991 S.C. Atty Gen Op. 152, Op. No. 91-60. The Inn Downtown is within three hundred feet of First Baptist Church and Paynor School, but it was established prior to November 7, 1972, and has been continuously licensed to sell and serve alcohol since then. Accordingly, the proposed location is "grandfathered" from the minimum distance requirements set forth in S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1995).

A location may still be found to be unsuitable even if the minimum distance requirements provided for in S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1995) are not applicable. In the present case, no evidence was presented to support a denial. Absent any evidence to establish past or current problems at the proposed location, there is no factual basis to find that the well-being of the surrounding vicinity would be jeopardized by the issuance of the permit and licenses. The Court must not make decisions based merely upon opinion and speculation.

In light of the problem-free history of the proposed location over the past thirty years, the manner in which the location is currently operated and managed, the lack of any evidence to suggest that the operation of the proposed location under Petitioner's ownership will differ from its past operation, and the lack of any evidence that the sale of liquor, beer or wine at the proposed location has been or will be detrimental to the surrounding community, I find the proposed location is suitable and proper for issuance of the licenses and permit sought.

By a preponderance of the evidence, I find:

1. Petitioner seeks an on-premises beer and wine permit, business sale and consumption license, and alcoholic liqueurs cooking license for a location at 121 W. Palmetto Street, Florence, South Carolina, having filed applications with DOR, AI #106769,

AI #106770, and AI #106771.

1. Notice of the time, date, place, and subject matter of the hearing was given to the applicant, protestants, and DOR.
2. DOR did not appear at the hearing nor indicate any opposition to the licenses and permit sought, having been excused from participation upon motion granted. DOR indicated in its motion that it would have granted the licenses and permit applied for except for the protests filed contesting the location's suitability.
3. The proposed location is located in downtown Florence in a highly commercial area.

1. Petitioner is currently operating the proposed location as a hotel, primarily and substantially involved in furnishing lodging and the preparation and service of meals, and intends to continue as such.
2. The Inn Downtown is a hotel with approximately 115 guest rooms, a dining room, and bar.
3. Petitioner purchased the Inn Downtown from Fred C. Avent on or January 5, 1996.
4. The current manager of the Inn Downtown, Ellen Shirley, has managed the Inn Downtown for approximately six years and will continue to be manager under Petitioner's ownership.
5. The proposed location has been licensed to sell and serve alcoholic beverages since it first opened in the mid 1960's.
6. The dining room is open for lunch daily, but operates at night only when being used for banquets or other special events.
7. The bar hours of operation are 5:00 p.m. - 10:00 or 11:00 p.m.
8. The bar averages approximately twenty customers per night, with most patrons being hotel guests.
9. Paynor School, an adult education center of the Florence County School system, is located 196 feet from the proposed location.
10. First Baptist Church of Florence is located 283 feet from the proposed location.
11. The Protestant-Intervenor church opposes the issuance of the licenses and permit on the bases of proximity of the proposed location to the church, the possibility of problems from intoxicated patrons leaving the licensed premises, and opposition on moral grounds to the sale and consumption of alcohol.
12. Since the Inn Downtown began operation, the church has not encountered any problems with the operation of the hotel, bar, or restaurant, nor with any of the guests or patrons of the Inn Downtown.
13. There are at least three other licensed locations within proximity to the Inn Downtown and First Baptist Church.

1. One of the nearby licensed locations, Tommy's Quick Mart, which holds an off-premises beer and wine permit, is located immediately adjacent to First Baptist Church on Irby Street.
2. Petitioner is over twenty-one 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.
3. Petitioner has not had a permit/license revoked in the last five years.
4. Petitioner is of good moral character.
5. Notice of the application appeared in a newspaper of general circulation in the area of the proposed location for three consecutive weeks and was posted at the proposed location for fifteen days.
6. The proposed location is suitable for the issuance of the licenses and permit sought.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law the following:

1. S.C. Code Ann. § 61-1-55 (Supp. 1995) provides that the South Carolina Administrative Law Judge Division is empowered to hear this case pursuant to Chapter 23 of Title I of the 1976 Code, as amended.
2. S.C. Code Ann. § 61-9-320 (Supp. 1995) provides the criteria to be met by an applicant for a beer and wine permit in South Carolina.
3. S.C. Code Ann. § 61-3-610 (Supp. 1995) provides for the issuance of licenses to establishments which offer meals to the public to allow for the purchase, sale, and service of liqueurs, wines, and other alcoholic beverages used solely in the cooking and preparation of foods.
4. S.C. Code Ann. § 61-5-50 (Supp. 1995) provides for the criteria to be met for issuance of a business sale and consumption (minibottle) license. It includes certain distance requirements in relation to churches, schools, and playgrounds, as measured and dictated by S.C. Code Ann. § 61-3-440 (Supp. 1995).

1. S.C. Code Ann. § 61-3-440 (Supp. 1995) dictates that a location within a municipality licensed to sell liquor must be a minimum of three hundred feet (300') from any church, school, or playground.
2. The 300 feet minimum distance requirement from schools, churches, and playgrounds applies to only those business establishments or locations established after November 7, 1972. See St. Philip's Episcopal Church v. S.C. ABC Commission, 285 S.C. 335, 329 S.E.2d 454 (Ct. App. 1985); 1991 S.C. Atty Gen Op. 152, Op. No. 91-60.
3. While the proposed location is within three hundred feet of a church and school, the Inn Downtown was established prior to November 7, 1972, and has been continuously licensed to sell and serve alcohol since then. Accordingly, the proposed location is "grandfathered" from the minimum distance requirements set forth in S.C. Code Ann. §§ 61-5-50 and 61-3-440 (Supp. 1995).
4. Protestants' testimony that the well-being of the community would be jeopardized by the issuance of the permit was based upon opinion and conclusion and lacked specific factual support. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
5. There is no evidence that local law enforcement protection is inadequate to protect the vicinity surrounding the proposed location or that the sale and service of liquor, beer and wine at the proposed location by Petitioner will require greater police protection in the future.
6. The proposed location is suitable and proper, in light of the problem-free history of the proposed location over the past thirty years, the manner in which the location is currently operated and managed, the lack of any evidence to suggest that the operation of the proposed location under Petitioner's ownership will differ from its past operation and the lack of any evidence that the sale of liquor, beer or wine at proposed location has been or will be detrimental to the surrounding community.

ORDER

IT IS THEREFORE ORDERED that DOR issue to Petitioner the beer and

wine permit, alcoholic liqueurs cooking license, and business sale and consumption license sought.

_____________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

April 24, 1996

Columbia, South Carolina