SC Administrative Law Court Decisions

The Petitioner, Thomas A. Beaver (Beaver) of Jackson, South Carolina filed with the South Carolina Department of Revenue and Taxation (DOR), the Respondent, an application for an off-premises beer and wine permit for 41 Forrest Drive, Jackson, South Carolina. On May 13, 1996, Neighborhood Crime Watch filed a Motion to Intervene, which was granted on May 16, 1996. Mr. and Mrs. Ronald Rider and Isaac Starke, filed a protest 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 with 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 Beaver meet the statutory requirements of S. C. Code Ann. § 61-9-320 (Supp. 1995)?

III. Analysis

1. Positions of Parties:

Beaver 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 December 5, 1995, Beaver filed an application with the Department of Revenue for an off-premises beer and wine permit.

2. The application is identified by DOR as AI 106492.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is 41 Forrest Drive, Jackson, South Carolina.

4. The nature of the business is that of a convenience store selling bait and tackle.

5. On May 13, 1996, Neighborhood Crime Watch filed a motion to intervene, which was granted on May 16, 1996.

6. A protest to the application was filed by Mr. and Mrs. Ronald Rider and Isaac Starke.

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

8. The hearing on this matter was held June 11, 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

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

10. The SLED report revealed no criminal violations.

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

12. The applicant is of good moral character.

c. Legal Resident and Principal Place of Abode

13. Beaver has resided in South Carolina since May 30, 1995.

14. Beaver holds a valid South Carolina driver's license.

15. Beaver currently resides at 47 Forrest Drive, Jackson, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

16. Beaver 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

17. Beaver has never had a beer and wine permit revoked.

e. Age

18. Beaver's date of birth is January 9, 1939.

19. Beaver is over twenty-one years of age.

f. Proposed Location

20. From 1990 to 1994 a prior operator held a beer and wine permit at the proposed location and operated under the name of Lolipop's.

21. During part of 1992, all of 1993, and part of 1994 Beaver managed Lolipop's.

22. During the operation of Lolipop's there were no reports of criminal activity at the proposed location with the exception of an investigation of a break in.

23. During the four year period of operation as Lolipop's there were no reports of charges made by SLED or other law enforcement agencies for alcohol violations associated with the proposed location.

24. During the four year period of operation as Lolipop's there were no reports to law enforcement authorities of traffic incidents or traffic irregularities associated with the proposed location.

25. The business operation of Lolipop's was as a general convenience store selling bait and tackle, snacks, and other convenience related items.

26. Beaver's business operations will be essentially the same as Lolipop's.

27. The closest church is Spoken Word Church at a distance of 1,650 feet with a second church, Silver Bluff, at a distance of approximately 2000 feet.

28. No disruption to church activities were caused by the proposed location when operated as Lolipop's.

29. Without the beer and wine permit, the protestants acknowledged there was no problem with the operation of a business such as that proposed by Beaver.

30. The location is adequately served by the traffic route of Highway 28.

31. There are several residences in the area.

32. While the area is predominately rural, there is commercial development in the vicinity with an automobile repair shop 500 feet from the proposed location.

g. Notice

33. Notice of the Beaver application was published in the Aiken Standard, a newspaper published and distributed in Aiken County, with notice published on September 23 , 30, and October 7, 1995.

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

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

36. Beaver 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 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. Rather, 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 Permit

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. In deciding whether to grant a permit, the courts have found it relevant whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, a prior owner operated the location with a beer and wine permit from 1990 to 1994. During that time, Beaver managed the business for one and a half years. The evidence does not demonstrate any criminal charges by SLED or other law enforcement agencies for alcohol violations during the four year period. Likewise, there is no documented evidence of criminal activity, traffic problems, or police intervention at the location other than an investigation of a break-in at the location.

It is also significant that the testimony of witnesses opposing the permit stated that the location and the business would not be a problem to the community except for its sale of beer and wine. The providing of needed services by the addition of a business to the community is a consideration in granting a permit. See Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972) (but for the beer and wine permit, witnesses conceded the establishment was an asset to the community).

c. Basis For Restrictions

The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976). Here, the mixed rural and commercial setting on Highway 28 along with the historic nature of the area requires that Beaver assume responsibility for activities of his patrons when the activities are related to the beer and wine permit. Accordingly, the permit must carry restrictions.

There is generalized concern from individuals residing in the area that past patrons may have consumed beer on the premises. While I do not have evidence sufficient to find this assertion to be a fact, I note the physical layout of the proposed location can indirectly encourage alcohol consumption on the premises. At least two picnic tables on the premises are used by patrons of the establishment. The presence of the tables along with the selling of short order food items creates a circumstance that may tempt a patron to drink on the premises. This is especially true where the tables are outside and not easily seen by employees working inside the building. Because of this situation, a restriction on the permit is appropriate.

Additionally, residents are concerned with their ability to enjoy their property. The hours of operation of the business and the activities of the patrons should not interfere with the rights of the residents to peace and quiet in their community. Accordingly, restrictions as to loitering, noise and hours of operation are also proper.

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 to deny a permit to a proposed location. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991).

6. A factor in granting a permit is whether the location has in the recent past been permitted and whether the location is now less suitable than in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E. 801 (1973).

7. Beaver's proposed location is as suitable now as it was when the prior permit was issued to operate Lolipop's.

8. A factor in granting a permit is whether, absent the permit, the proposed location is an asset to the community. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

9. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943).

10. Permits are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976).

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

12. 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).

13. 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).

Beaver's application for an off-premises beer and wine permit at 41 Forrest Drive, Jackson, South Carolina shall be granted upon Beaver signing an agreement with DOR to adhere to the following restrictions:

1. Beaver must place a sign in a conspicuous location inside his store with the sign stating in bold print, "No alcohol shall be consumed on this property, either inside or outside the building." The sign shall be no smaller than twelve inches by twelve inches with the message on the sign covering a space of eleven inches by eleven inches.

2. Beaver must prohibit loitering on the property and must enforce this prohibition.

3. Beaver must prohibit loud noise on the property and must enforce this prohibition.

4. Beaver's closing hour must be no later than 11:00 p.m.

Any failure to adhere to the restrictions shall be grounds for revocation of the permit.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 13th day of June, 1996.