South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Larry Detwiler, Rack Time, Inc., d/b/a The Sweet Spot vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Larry Detwiler, Rack Time, Inc., d/b/a The Sweet Spot

Respondents:
South Carolina Department of Revenue

Intervenor:
George Estes
 
DOCKET NUMBER:
96-ALJ-17-0156-CC

APPEARANCES:
James H. Harrison, Esq., for Petitioner

Arlene D. Hand, Esq., for Respondent, Excused from Appearance

James S. Klauber, Esq., for Intervenor

Reverend Robert Emory, Protestant

J. Leon and Juanita Hughes, Protestants
 

ORDERS:

ORDER

I. Introduction


On May 9, 1996, a hearing was held in this matter concerning an application for a beer and wine permit and a mini-bottle sale and consumption license for a private club at a proposed location on Highway 25N in Ware Shoals, South Carolina. By an Order issued May 15, 1996, the permit and license were denied. On May 28, 1996, a Motion for Reconsideration was filed by Larry Detwiler (Detwiler) with such motion raising four positions to be reconsidered. I do not find that additional argument is needed but I take this opportunity to address the positions raised. While the permit and license are still denied, in an effort to more accurately state the facts and rationale of the decision, the Order of May 28, 1996, is vacated and withdrawn in its entirety by this Order of May 31, 1996, issued as the final decision in this matter.



II. Statement of the Case


The Petitioner, Larry Detwiler (Detwiler) of Ware Shoals, 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 and a sale and consumption license for Hwy. 25N, Ware Shoals, South Carolina. George Estes (Estes) Respondent, filed a protest seeking to prevent DOR from granting the license. Additional protests were filed by Reverend Robert Emory and J. Leon and Juanita Hughes. 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). As to mini-bottles, the same rule applies under S.C. Code Regs. 7-3 (Supp. 1995). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the hearing required by Regs. 7-90 and 7-3, 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 and license are denied. 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).

III. Issues


Do Detwiler and the corporation meet the statutory requirements of S. C. Code Ann. §§ 61-9-320 and 61-5-50 (Supp. 1995) for an on-premises beer and wine permit and a mini-bottle license for a private club?

IV. Analysis

1. Positions of Parties:

Detwiler asserts he and the corporation Rack Time, Inc. meet all the requirements of the statutes. DOR states that due to the protests, no permit could be granted and it awaits the outcome of this hearing. The Protestants assert notice of the application was inadequate 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 19, 1995, Detwiler and Rack Time, Inc. filed an application with the Department of Revenue for an on-premises beer and wine permit and a mini-bottle license as a nonprofit private club.

2. The applications are identified by DOR as AI 106659 and AI 106660.

3. The proposed location of the business and the place where the beer and wine permit and the mini-bottle sale and consumption license will be utilized is Hwy. 25 North, Ware Shoals, South Carolina.

4. The nature of the activity is that of a private club operating under the name of The Sweet Spot.

5. The private club is non-profit, has a limited membership, and was established for social and fraternal purposes.

6. The private club is not open to the general public.

7. A protest to the application was filed by Estes and Reverend Robert Emory and J. Leon and Juanita Hughes.

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

9. The hearing on this matter was held May 9, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, Estes and the Protestants.

b. Moral Character

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

11. The SLED report revealed no criminal violations.

12. The corporation, Rack Time, Inc. was established in March 1995, with Bootsie Cox as the President.

13. Detwiler is now President of Rack Time, Inc.

14. The SLED report revealed no criminal violations against Detwiler.

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

16. The applicant as an individual and as a principal of the corporation is of good moral character.

c. Reputation For Peace and Good Order In The Community

17. The corporation, Rack Time, Inc. was established in March 1995.

18. The corporation has not created a lack of peace nor created disorder in the community.

19. The reputation of Rack Time, Inc. is one of peace and good order in the Laurens community.

d. Legal Resident and Principal Place of Abode

20. Detwiler has resided in South Carolina since October 1, 1986.

21. Detwiler holds a valid South Carolina driver's license.

22. Detwiler currently resides at 124 Leftbank Ct., Laurens, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application.

23. Detwiler 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.



e. Prior Revocation Of Beer or Wine Permit

24. Detwiler has never had a beer and wine permit revoked.

e. Age

25. Detwiler's date of birth is January 7, 1941.

26. Detwiler is over twenty-one years of age.

f. Proposed Location

27. The proposed location is in an unincorporated portion of Laurens County, .7 of a mile from the Greenwood County line.

28. During the night hours, the sheriff has three deputies to cover the county.

29. The proposed location will operate seven days a week and will close at 2:00 a.m. Monday through Saturday and at 12:00 midnight on Sunday.

30. Police protection is impaired by permitting and licensing of the proposed location since the Sheriff's Office is able to respond to an emergency at the proposed location only after approximately 15 to 20 minutes and to a non-emergency in approximately 25 to 40 minutes.

31. The Sheriff's Office has not received complaints of criminal activity at the proposed location, but there is a past history of crime in the general area.

32. Consistent with the views of the Sheriff's Office, the proposed location is not in the best interest of the community.

33. There are two churches in the immediate area with one approximately .7 of a mile away from the proposed location and the second a similar distance.

34. A church ministry called God's Store Front operates 179 feet from the proposed location.

35. Beer and wine is sold under an on-premises permit by an adjacent entity known as Jabill's Stop & Shop.

36. There is no licensed location in the immediate vicinity selling liquor for on-premises consumption.

37. The proposed location's parking is such that patrons typically park along the shoulder of Hwy. 25 which runs in front of the location.

38. The parking area is poorly lighted.

39. While there is no evidence of accidents at the proposed location, residents have observed erratic driving by patrons.

40. The parking at the proposed location creates a traffic danger.

41. Residences exist in close proximity to the location.

42. There are numerous residences in the area including one at 312 feet, one at 371 feet, one at .25 of a mile, one at .33 of a mile, and one at .75 of a mile from the proposed location.

43. There are a number of widows in the area and a general residential population over 65 years of age.

44. Excessively loud music has been played at an adjacent business, Jabill's, owned and operated by Detwiler, resulting in disturbances to the residents.

45. The area is predominately rural and residential with limited commercial development.

46. The granting of the permit and license will have an adverse effect on the community.

g. Notice

47. Notice of the Detwiler application was published in the Laurens County Advertiser, a newspaper published and distributed in Laurens County, with notice published on December 8, 15 and 22, 1995.

48. The Laurens County Advertiser has approximately 80 subscribers in the Route 1, Ware Shoals area.

49. The name of the Laurens County Advertiser was supplied to Detwiler by DOR as being an acceptable newspaper in which to present its advertisement.

50. The Observer has approximately 345 subscribers in the Route 1, Ware Shoals area.

51. Notice of the Detwiler application was not published in the Observer.

52. The Laurens Advertiser enjoys a county wide distribution along with a significant distribution in the Route 1 area of Ware Shoals.

53. Notice of the Detwiler application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Ware Shoals and the county of Laurens.

54. Detwiler gave notice to the public by a SLED agent displaying a sign for fifteen days at the site of the proposed business and with such sign removed by a SLED agent.

55. Detwiler 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, the reputation of Rack Time, Inc. being one for peace and good order in the community, 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, or being at least twenty-one years of age. Rather, the issues are whether Detwiler provided proper notice of the application by way of newspaper and whether the proposed location is a proper one.

b. Notice

Proper newspaper notice is accomplished by advertising the fact that the applicant has applied to DOR for a permit and license. The advertisement must be given "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." S.C. Code Ann. § 61-9-320(7) and § 61-5-50(4)(Supp. 1995). In determining what is an appropriate newspaper in which to provide the notice, the applicant is allowed to rely upon newspapers selected by DOR since "[DOR] shall determine which newspapers meet the requirements of this section ..." S.C. Code Ann. § 61-9-320(7). In the instant case, DOR provided to the applicant names of newspapers sufficient to meet the requirements of the current applicant in the Laurens County area. From such names for Laurens County the applicant selected the Laurens County Advertiser. A selection of one of the names for the county supplied by DOR satisfies the applicant's duty.

Further, even without reliance upon DOR's list, in the instant case the notice advertised in the Laurens County Advertiser meets the applicant's notice duty. The statute requires the applicant to give notice 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. The fact that more subscribers to one newspaper than to another reside along Route 1 in Ware Shoals does not establish inadequate notice in violation of the statute. In fact, to advertise so as to limit the notice to a specific area less than the entire county may deprive the rest of the county from sufficient notice. For example, a hearing on a license for a mini-bottle is required when a protest is filed by "one or more persons residing in the county where the license is requested to be granted." S.C. Code Regs. 7-3 (emphasis added). Thus, in deciding how to give notice to the persons entitled to protest, consideration must be given to the extent of distribution of the newspaper in the county as well as in the local area. Here, the evidence supports the fact the Laurens County Advertiser enjoys a county wide distribution along with a significant distribution in the Route 1 area of Ware Shoals. Accordingly, advertisement in the Laurens County Advertiser meets the notice requirement of the statute.

c. Proposed 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. Additionally, in granting a mini-bottle license it is proper to consider the suitability of the location. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). 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 is a proper consideration. 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. 160, 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). 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 Improper 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 and license must be denied. Several factors lead me to this conclusion. First, the existence of residents in close proximity to the location is a significant factor here. The experience during the short time in which Detwiler has operated an adjacent business, Jabill's, provides a glimpse of how compatible a new enterprise operated by Detwiler will be with the community. A proper consideration for the trier of fact is whether the granting of the permit and license will have an adverse effect on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). During the brief time of operation, residents have already experienced at least one episode of excessively loud music. Further, the area is at least in part populated by older residents. There are widows in the area and residents in excess of 65 years of age. A private club operating until 2:00 a.m. will have a negative impact upon such a community.

Second, the area is on the extremity of the county in an unincorporated area. The Sheriff testified that the response time in an emergency is fifteen to twenty minutes due to having to place his deputies in the more populous areas of the county. In addition, the Sheriff has only three deputies at night. This is a significant factor since the hours of operation are until 2:00 a.m. most nights. While there is no specific evidence of crime at the proposed location, the Sheriff, testifying as a law enforcement official, did not believe the proposed location was in the best interest of the community. Given the lengthy response time due to distance, the limited number of law enforcement personnel, and the Sheriff's view that the proposed location is not in the best interest of the community, the permit and license presents a difficulty for law enforcement.

Third, the layout of the proposed location is deficient in that there is inadequate parking and insufficient lighting. The parking facilities are such that vehicles are required to park along or near the shoulder of Hwy. 25. Even though Detwiler has acquired additional parking, there is no indication parking will be prohibited along the highway. Whether such parking is legal or illegal is not the issue. Rather the concern is whether parking in such proximity to a major highway and the presence of beer, wine, and liquor are suitable. The arrangement of the location creates the potential for unobservant patrons to wander too close to a major highway during the hours of darkness during which the location will operate. Such problems are compounded since at least one witness testified the outside area of the proposed location is poorly lighted.

Finally, while the adjacent business holds a beer and wine permit, the evidence presented to me does not demonstrate any other establishments in the immediate vicinity serving liquor for on-premises consumption. I am not so naive as to believe that merely because a statute classifies beer and wine as non-alcoholic there is somehow a conclusion that the beer and wine does not contain alcohol. Such is obviously not true. However, it is significant that beer and wine are statutorily defined as non-alcoholic. S.C. Code Ann. § 61-9-10 (Supp. 1995). Regardless of the purpose for the classification as alcohol or non-alcohol, the introduction of alcohol in the form of mini-bottles is not compatible with a community such as the instant one where the overall character is essentially rural and residential and to introduce such would negatively impact the community. Further, even if another mini-bottle license were in the area, such a factor would be insufficient to alter my conclusion in this case.

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 operates a bona fide nonprofit organization. S.C. Code Ann. § 61-5-50(1) (Supp. 1995).

2. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995); S.C. Code Ann. § 61-5-50(2) (Supp. 1995).

3. The corporation has a reputation for peace and good order in the community. S.C. Code Ann. § 61-5-50(2) (Supp. 1995).

4. 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); S.C. Code Ann. § 61-5-50(7) (Supp. 1995).

5. 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).

6. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995); S.C. Code Ann. § 61-5-50(6) (Supp. 1995).

7. The applicant's location is unsuitable and is not a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995); Schudel v. S.C. ABC Commission, 276 S.C. 138, 276 S.E.2d 308 (1981).

8. Consideration must be given to whether the granting of the permit and license will have an adverse effect on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9. The proximity of the location to residences is a proper consideration. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

10. The lack of 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).

11. The presence of loud music combined with proximity to residences is a factor in denying a permit or license. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

12. Whether the proposed location creates a traffic danger is a valid consideration in granting a permit or license. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

13. Law enforcement considerations are valid considerations in granting a permit or license. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

14. Considering all relevant factors, the proposed location is not a proper location for a beer and wine permit or for a mini-bottle license. S.C. Code Ann. § 61-9-320(6) (Supp. 1995); S.C. Code Ann. § 61-5-50(3) (Supp. 1995).

15. In determining what is an appropriate newspaper in which to provide the notice, the applicant is allowed to rely upon newspapers selected by DOR. S.C. Code Ann. § 61-9-320(7) (Supp. 1995).

16. In deciding how to give notice to the persons entitled to protest a mini-bottle license, consideration must be given to the extent of distribution of the newspaper in the county as well as in the local area. S.C. Code Regs. 7-3 (1995).

17. 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); S.C. Code Ann. § 61-5-50(4) and (5) (Supp. 1995).

18. The applicant does not meet the requirements for the issuance of a mini-bottle license pursuant to S.C. Code Ann. § 61-5-50 (Supp. 1995).

19. The applicant does not meet the requirements for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).

V. ORDER


DOR is ordered to deny Detwiler's application for an on-premises beer and wine permit and a sale and consumption license at Hwy. 25N, Ware Shoals, South Carolina.

IT IS SO ORDERED.



____________________________

RAY N. STEVENS

Administrative Law Judge

This 31st day of May, 1996.


Brown Bldg.

 

 

 

 

 

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