SC Administrative Law Court Decisions

Willie Belton (Belton) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine for 1866 Hwy. 321, Winnsboro, South Carolina. Protests were filed by First Baptist Church, Robert H. Jolly, and Wayne Lewis seeking to prevent DOR from granting the application. Wayne Lewis appeared at the hearing.

Not all of the requirements for obtaining a beer and wine permit are disputed. Rather, the granting or denying of the permit turns upon the disputed matter of whether the location is a proper location for a beer and wine permit. The location dispute was raised by protests filed pursuant to S.C. Code Ann. § 61-4-525 resulting in a contested case before the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 2001), 1-23-600(B) (Supp. 2001) and 1-23-310 (Supp. 2001). The evidence and relevant factors require granting the on-premises beer and wine permit but only with restrictions.

Does Belton meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is improper?

1. Positions of Parties

Belton asserts he meets the statutory requirements. DOR states it would have granted the permit but for the filing of protests asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. The protestants assert the permit should be denied since the location is not suitable.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

A. General Facts of Location

On or about September 20, 2002 Belton filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 32029198-3. The applicant and the location were investigated by SLED and the investigating agent drew a map generally depicting the immediate area of the proposed location. Following the posting of notices, First Baptist Church, Robert H. Jolly, and Wayne Lewis challenged the application resulting in a hearing for this dispute held on Tuesday, January 7, 2003, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

The proposed business (and the place where the beer and wine permit will be utilized) is located at 1866 Hwy. 321, Winnsboro, SC. According to the filed application, the business is a bar with the bar open for business seven days a week from 5:00 p.m. until 3:00 a.m. The operation will provide seating for approximately 45 to 50 people. No food will be prepared at the location but the bar will sell chips and other similar items. The location will also provide three pool tables for its patrons.

B. Specific Facts of Location

1. Statutory Proximity Factors

Two schools, a church, and a single residence are in the immediate area. The residence is 1,560 feet with First Baptist Church being 2,080 feet from the proposed location. No other churches or residences are in the immediate area. As for schools, Fairfield Intermediate School is 1300 feet and Fairfield Primary School is 2,080 feet from the proposed location. Both schools are on the opposite side of the highway than is the location. Further the hours of operation for the schools do not coincide with the hours of the location. Based on the photographs entered as evidence, vegetation and elevated topography prevent the schools and the church from being visible from the location.

2. Other Factors

The evidence does not show the presence of crime at the proposed location of 1866 Hwy. 321, Winnsboro, SC. Indeed, nothing in the record shows any involvement at the location from law enforcement officials. Likewise, no evidence demonstrates the any incidents involving drugs at the location for the time period here under review.

Likewise, no record of traffic concerns have been established since Hwy. 321 provides an adequate traffic route for the proposed location. In addition, a sheriff's office is located approximately three miles from the location and thus provides adequate police protection to the area.

3. Conclusions of Law

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

A. Law of Location Applied to Location Facts

1. Location Factors: General

Under S.C. Code Ann. § 61-4-520 (Supp. 2001), no beer and wine permit may be granted unless the location of the place of business is a proper location. Here, the location is proper if restrictions are imposed on the permit.

2. Location Factors: Proximity

The proximity 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). Indeed, the sole factor of an improper proximity to any one of the institutions of residences, churches, schools, or playgrounds is a proper basis for denying a beer and wine 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. 160, 417 S.E.2d 555 (1992).

The proposed location is not within an improper proximity to residences, churches, or schools. A church and Fairfield Primary School are 2080 feet away. Fairfield Intermediate School is 1300 feet. Only one residence is in the immediate area at a distance of 1,560 feet. Here, the hours of operation for the schools do not coincide with the hours of the location. Thus, interaction between the location and the school will be slight, if any. Further, given the distances along with the vegetation and topography, the location is not prominent. Thus, the location is not within an improper proximity.

3. Location Factors: Other

A proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon law enforcement. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). For example, a relevant consideration is whether there is evidence of insufficient police to cover the location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). Here, no lack of police is demonstrated since police coverage is provided by the sheriff's office and is provided from a point of dispatch is only three miles away. Such indicates adequate coverage for the location.

Consideration can be given to the extent to which the highway traffic presents a location that is heavily traveled or creates a traffic danger. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, no evidence of a safety problem exists. The highway in front of the location provides a clear line of sight both to the left and right for patrons leaving the location. No evidence of accidents at the location has been shown and the highway is a well maintained route for traffic.

A valid favorable consideration is whether the surrounding area has a commercial presence. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here the area has some commercial activity since the area includes a driving range, a feed and seed business, an appliance sales business, and a car lot.

Finally, when required, it is appropriate to impose restrictions. In fact, the granting of a beer and wine permit is the granting of a privilege and that privilege 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. § 61-2-80 (Supp. 2001); 23 S.C. Code Regs. 7-88 (1976).

In this case, the operation of the location into the early hours of the morning is inconsistent with the character of the area. Indeed, at least one residence is less than 1,600 feet from the location. Activities of a bar operating at 3:00 a.m. are not consistent with the need for rest and sleep associated with residential living. In addition, the area is essentially a community setting as evidenced by the church and the two schools. Thus, the permit may only be utilized at the location if the location closes at midnight on all nights of the week except for Friday night whereupon the location shall have a closing hour of 1:00 a.m Saturday morning.

B. Ultimate Conclusion as to Location

I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to residences, schools, churches, and playgrounds. However, other location factors require the that the permit must be restricted as to its hours of operation. Accordingly, Belton's application must be approved but with restrictions.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

DOR shall grant Willie Belton's application for an on-premises beer and wine at 1866 Hwy. 321, Winnsboro, South Carolina but shall do so only with the following restriction: the permit may only be utilized at the location if the location closes at midnight on all nights of the week except for Friday night whereupon the location shall have a closing hour of 1:00 a.m Saturday morning.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: February 6, 2003

Columbia, South Carolina