South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Horace A. Bouknight, d/b/a Circle Party Shop vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Horace A. Bouknight, d/b/a Circle Party Shop

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0182-CC

APPEARANCES:
Jonathan R. Hendrix, Esq., for Petitioner

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

Randall L. Kirkland, Protestant
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Horace A. Bouknight (Bouknight) of Leesville, 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 Rt. 4, Box 170D, Leesville, South Carolina. William C. Ebener, Pastor of Union Lutheran Church, and Randall L. Kirkland, filed protests seeking to prevent DOR from granting the license. 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 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).

II. Issue


Does Bouknight meet the statutory requirements of S. C. Code Ann. § 61-9-320 (Supp. 1995)?

III. Analysis

1. Positions of Parties:

Bouknight 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 improper.

2. Findings of Fact:

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

a. General

1. On or about February 22, 1996, Bouknight 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 107440.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is Rt. 4, Box 170D, Leesville, South Carolina.

4. The nature of the business is that of a game room doing business as Circle Party Shop.

5. Protests to the application were filed by William C. Ebener, Pastor of Union Lutheran Church, and Randall L. Kirkland.

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

7. The hearing on this matter was held June 10, 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. Bouknight was born in South Carolina and has resided in South Carolina since his birth.

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

14. Bouknight currently resides at Rt. 2, Box 244, Leesville, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

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

e. Age

17. Bouknight's date of birth is September 9, 1948.

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

f. Proposed Location

19. For many years the proposed location was operated as a garden shop by Bouknight.

20. The garden shop business has been halted at the proposed location with the premises converted recently to a game room including pool tables and a juke box.

21. In addition to beer and wine, the proposed location will sell soft drinks and snacks.

22. There is no evidence of reported criminal activity at the proposed location.

23. The proximity to churches consists of Nazaren Methodist Church at 1.8 miles and Union Lutheran Church at four miles.

24. Beer and wine is sold persuant to off-premises permits by two nearby entities known as Citgo Country Peddler and Circle Stop & Shop.

25. The closest school is approximately five miles from the applicant's location.

26. The location is adequately served by the traffic routes of Hwy. 378 and Hwy. 391.

27. There is no demonstrative evidence of accidents near the proposed location

28. The protestants expressed the view that traffic entering the highway from the proposed location will present a concern.

29. The speed limit at the proposed location is 25 miles per hour.

30. Traffic at the proposed location is one way only.

31. There have been no reports of loud noise from the proposed location's operation as a game room.

32. Parking is adequate and consists of 18 spaces owned by Bouknight at the proposed location with 8 additional spaces available after 6:00 p.m. of the property next door.

33. Additional parking spaces are available by Bouknight renting property near the proposed location.

34. A few residences are in the area, with most being over 500 feet from the proposed location.

35. The closest residential subdivision is approximately two miles from the proposed location.

36. The area is predominately rural with some commercial development near the proposed location.

g. Notice

37. Notice of the Bouknight application was published in the The Saluda Standard-Sentinel, a newspaper published and distributed in Saluda County, with notice published on March 7, 14, and 21, 1996.

38. Notice of the Bouknight application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Leesville.

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

40. Bouknight gave notice of the application by way of required advertising by newspaper and the 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 both 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. The only matter disputed is whether the proposed location is a proper one.

Pursuant to 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. S.C. ABC Comm'n v. William Byers, 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, supra. 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).

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. Nothing in the evidence indicates any problem with the location during the prior period it was operated as a garden shop. During that time period there is no evidence that parking or traffic to and from the location presented a problem. The parking available to the game room will be adequate for the business especially with the ability to use spaces of neighboring businesses. There is no evidence of criminal activity at the location. Additionally, the distances to churches, schools and residences are sufficient so as to not present problems with worship services, educational activities or residential living. The area has some commercial activity such that the addition of a game room will not be a detriment to the community. Finally, there are already at least two establishments in the immediate vicinity holding beer and wine permits such that the granting of the permit will not significantly change the overall character of the area. Considering the evidence as a whole, the permit should 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 impact of the proposed location upon traffic in the area can be a consideration. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

6. The commercial activity in the area 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).

7. The existence of other businesses in the area with beer and wine permits is a factor in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

8. Considering all relevant factors, 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. 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).



IV. ORDER


Bouknight's application for an on-premises beer and wine permit is granted.

IT IS SO ORDERED.



____________________________

RAY N. STEVENS

Administrative Law Judge

This 12th day of June, 1996.


Brown Bldg.

 

 

 

 

 

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