SC Administrative Law Court Decisions

The Petitioner, Theodore Hammerman (Hammerman) of Myrtle Beach, South Carolina filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an on-premises beer and wine permit for 919 Broadway Street, Myrtle Beach, South Carolina. Patrick L. Hill (Hill), a recipient of services provided by StreetReach Ministries, filed a protest seeking to prevent DOR from granting the license. On March 22, 1996, Hill filed a Motion to Intervene, and with no objection from the Petitioner, an Order Granting the Motion to Intervene was issued on March 25, 1996. A hearing on the application was 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 on April 16, 1996, 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. 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 Hammerman meet the statutory requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995) by demonstrating he possesses good moral character, has been a legal resident of the United States and South Carolina for 30 days, has held a principal place of abode in South Carolina for 30 days prior to filing the application, has not had a beer or wine permit revoked within two years of the date of the current application, is twenty-one years of age or older, will utilize the permit at a proposed location that is proper, and gave notice of the application by way of required advertising by newspaper and the display of signs?

III. Analysis

1. Positions of Parties:

Hammerman 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. Hill asserts Hammerman lacks good moral character and 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 December 27, 1995, Hammerman 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 106697.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is 919 Broadway Street, Myrtle Beach, South Carolina.

4. A protest to the application was filed by Patrick L. Hill, a receipent of services provided by StreetReach Ministries.

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

6. The hearing on this matter was held April 16, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and Hill.

b. Moral Character

7. The State Law Enforcement Division (SLED) completed a criminal background investigation of the applicant.

8. The SLED report revealed no criminal violations involving moral turpitude.

9. The applicant has not engaged in acts or conduct that imply the absence of good moral character.

10. The applicant is of good moral character.

c. Legal Resident and Principal Place of Abode

11. Hammerman established his residency in South Carolina in December of 1968.

12. Hammerman holds a valid South Carolina driver's license.

13. Hammerman currently resides in Myrtle Beach, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

14. Hammerman 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

15. Hammerman has never had a beer and wine permit revoked.

e. Age

16. Hammerman's date of birth is September 7, 1947.

17. Hammerman is over twenty-one years of age.

f. Proposed Location

18. Beginning in 1987 and continuing for approximately one and one half years, a prior owner of the existing location operated as Offshore Seafood II with an on-premises beer and wine permit.

19. Subsequent to the closing of Offshore Seafood II, a second business known as the Rice House operated a restaurant at the same location for approximately one and one half years, with such business having an on-premises beer and wine permit.

20. During the period the Rice House was operating, StreetReach Ministries moved into the building next door to the Rice House.

21. StreetReach Ministries provides meals and shelter to the homeless and also attempts to rehabilitate individuals with addictions to alcohol or drugs.

22. During the time the proposed location has been operated by Hammerman and during the time the location was operated with prior beer and wine permits, there is no evidence of reported incidents requiring intervention by any law enforcement agencies at the proposed location.

23. During the periods that previous beer and wine permits were utilized by businesses at the proposed location, there is no evidence of disturbances or interference with or a detrimental impact upon the programs of StreetReach Ministries.

24. The applicant's business at the proposed location consists of a retail and wholesale seafood business as well as a restaurant business with the seafood business contributing approximately twice the gross revenue of that generated by the restaurant business.

25. The wholesale seafood is sold to other restaurants and is delivered by three trucks owned by Hammerman.

26. The business is open Monday through Saturday at 9:00 a.m. and closes at 6:00 p.m. Monday through Wednesday, and at 10:00 p.m. Thursday through Friday.

27. The restaurant business provides a counter with 24 stools with meals served at the counter.

28. The restaurant provides a menu for lunch six days a week and for dinner three days a week.

29. First United Methodist Church is located on the other side of Broadway Street from the proposed location.

30. Broadway Street is a major traffic artery in the area forming a separation between First United Methodist Church and the proposed location.

31. The church did not file a protest to the application.

32. Neither the management nor the board of directors of StreetReach Ministries filed a protest to the application.

33. Smoothies, an establishment located approximately one block from the proposed location, has an on-premises beer and wine permit and a mini-bottle license.

34. Magoo's, an establishment approximately 300 feet from the proposed location has an on-premises beer and wine permit and a mini-bottle license.

35. Circle K, a convenience store located approximately two blocks from the proposed location, has an off-premises beer and wine permit.

36. The location is adequately served by the traffic route of Broadway Street.

37. Other than the temporary recipients of services from StreetReach Ministries, there are no residences in the area.

38. The proposed location is in a concentrated, retail commercial area in downtown Myrtle Beach.

g. Notice

39. Notice of the Hammerman application was published in the Sun News, a newspaper published and distributed in Horry County, with notice published on December 21, and December 28, 1995 and January 4, 1996.

40. Notice of the Hammerman application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Myrtle Beach.

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

42. Hammerman gave notice of the application by way of required advertising by newspaper and display of signs.

3. Discussion

a. Introduction

There is no factual dispute in this matter as to the applicant satisfying the requirements of 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 matters disputed are whether Hammerman has good moral character and whether the proposed location is a proper one.

b. Good Moral Character

Generally, good moral character means that one should possess all elements essential to make up that character, such as honesty and veracity . See Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102 (Fla. Dist. Ct. App. 1977); Broers v. Montana Dept. of Revenue, 773 P.2d 320 (Mont. 1989). Hammerman has the requisite good moral character required for a beer and wine permit. No lack of moral character was found since SLED completed a criminal background investigation of the applicant and found no criminal violations involving moral turpitude. The only assertion of lack of good moral character arises from the testimony of Hill. Hill's testimony alludes to an alleged attempt by an "investor" of Woodge, Inc. to entice Hill to drop his protest in return for monetary compensation. The evidence surrounding the alleged incident does not support any lack of moral character by Hammerman.

First, Hill agreed the individual who allegedly made the offer was not Hammerman. Second, while Hill implied the individual acted at Hammerman's request, there is no persuasive evidence that any individual acted on Hammerman's behalf in reference to an alleged offer to Hill. The testimony establishes that the only investors in Woodge, Inc. are Hammerman and his wife as the sole stockholders. Therefore, any alleged "investor" would have been a party independent of Hammerman. Finally, there is no evidence establishing any form of agency or representative capacity between the alleged "investor" and Hammerman. Accordingly, the alleged incident does not demonstrate a lack of good moral character.

c. General Considerations For Proper Location

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. ABC 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. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC 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. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). The proximity of the proposed location to children may also 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. 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. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

d. Basis For Decision On Proper Location

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. StreetReach Ministries, the occupant of the property next door to the proposed location, has, as one of its functions, a program to rehabilitate drug addicts and alcoholics, with such program including the holding of religious services. Hill, a recipient of the services of StreetReach Ministries, presents two objections. First, the proposed location will present a temptation to recovering alcoholics, and second, the traffic along the sidewalk will be detrimental to the worship services of the StreetReach Ministries. While I commend the function performed by StreetReach Ministries, under the facts of this case, the objections presented by Hill are insufficient to deny a beer and wine permit to a combination seafood business and restaurant at the proposed location.

First, as to the temptation objection, it is noted that StreetReach Ministries opened at the current location at a time when a restaurant with a beer and wine permit was already operating in the exact location now under review. Thus, the management and the board of directors must have determined that a restaurant selling beer and wine posed no significant threat. In the instant case, the proposed location is a combination seafood business and restaurant. Second, in the current matter, there is no protest filed by the board of directors of StreetReach Ministries. As such, there is no evidence of an objection to the location by the ministry itself. Third, the proposed location does not present a significant increase in temptation to that which is already present in the area since beer, wine and mini-bottles are currently readily available within a radius of two blocks of the proposed location. Magoo's, 300 feet away, sells beer, wine, and mini-bottles for on-premises consumption. Smoothies, one block away, sells beer, wine, and mini-bottles for on-premises consumption. The Circle K, a convenience store two blocks away, sells beer and wine for off-premises consumption.

As to the objection concerning the traffic on the sidewalk as a negative impact upon the worship services, the proposed location is already operating as a seafood and restaurant business. Thus, the traffic and noise associated with a seafood business and restaurant is already present. No significant change will occur by granting a beer and wine permit to the restaurant. Further, the testimony is that the services at StreetReach Ministries are in the evening. The restaurant is closed Monday through Wednesday at six and closed all day Sunday. Thus, traffic on the sidewalk associated with the restaurant will occur only three days a week. Finally, the area is a downtown area in the middle of a highly commercial, retail district. It must be fully expected that significant traffic will occur on the sidewalk due to the downtown location of StreetReach Ministries. In light of these factors, the granting of the permit will not present a disruption to the worship services.

Additionally, it is significant that prior owners have operated at the existing location with on-premises beer and wine permits. Nothing in the evidence indicates any problem with the location during that time period, and in this instant case, the new owner will operate a restaurant in much the same fashion as prior owners. While the distance to the First United Methodist Church is approximately 180 feet, that distance is across Broadway Street. Broadway Street is a major traffic artery in the downtown area of Myrtle Beach. The traffic artery creates a significant separation from the proposed location and the church, especially where the location operates as a seafood business and restaurant. Further, the hours of operation of the proposed location do not present a likelihood of disruption of the church services since the proposed location is closed on Sunday and closes at 6:00 p.m. during the week, except for Thursday through Saturday. In addition, the church did not protest the Hammerman's application. Finally, the area is highly commercial with numerous retail merchants and includes establishments holding beer and wine permits and mini-bottle licenses. On the whole, considering all of the factors involved, the granting of the permit will not significantly change the overall character of the area and such permit must be granted.

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. ABC 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. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

8. 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).

9. 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).

DOR is ordered to grant Hammerman's application for an on-premises beer and wine permit at 919 Broadway Street, Myrtle Beach, South Carolina.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 18th day of April, 1996.