SC Administrative Law Court Decisions

The Petitioner, Steve Pulaski (Pulaski) of Hampton, 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 Route 1, Box 4B, Hwy. 363N, Hampton, South Carolina. Reverend Robert D. Hawks of Abundant Life Tabernacle, UPC, 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). At the hearing without objection, Reverend Hawks was allowed to intervene as a party.

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).

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

III. Analysis

1. Positions of Parties:

Pulaski 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 protestant asserts 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 March 21, 1996, Pulaski 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 108044.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is Route 1, Box 4B, Hwy. 363N, Hampton, South Carolina.

4. The nature of the business is that of a convenience store and game room doing business as Sauls Grocery.

5. A protest to the application was filed by Reverend Robert D. Hawks on behalf of Abundant Life Tabernacle, UPC.

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 25, 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. Pulaski was born in South Carolina and has resided in South Carolina since his birth.

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

14. Pulaski currently resides at Route 1, Box 47A, Hampton, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

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

e. Age

17. Pulaski's date of birth is September 21, 1950.

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

f. Proposed Location

19. The proposed location has been operated by prior permit holders utilizing on-premises beer and wine permits.

20. Beer and wine for on-premises sales have been made on virtually a continuous basis since the early 1970's.

21. Jimmy Sauls owns the building and land and operated with an on-premises permit since 1970.

22. The most recent operators have been Betty Padgett from 1990 to 1995 and Ernest Ward from October 1995 to present.

23. There have been no significant problems with the location during prior operations.

24. A homicide in the area did not occur at the proposed location.

25. Other than a break-in at the proposed location, there is no police report of criminal activity occurring at the proposed location.

26. The applicant will continue the same general business as the prior operators.

27. The proximity to churches consists of Abundant Life Tabernacle at 421 feet.

28. The proposed location was in existence and selling beer and wine for on-premises consumption prior to the church being constructed and becoming operational.

29. The proximity to the church is not a detriment to the issuance of the permit.

30. Beer and wine is sold under an on-premises beer and wine permit by a similar entity approximately .5 of a mile away.

31. There is no evidence of any proximity of the proposed location to a school.

32. The location is adequately served by the traffic route of Hwy. 363.

33. There are no traffic problems associated with the proposed location.

34. The proximity to residences is not a detriment to the issuance of the permit.

35. The area is predominately rural with a mixture of residences and limited retail establishments.

g. Notice

36. Notice of the Pulaski application was published in the The Hampton County Guardian, a newspaper published and distributed in Hampton County, with notice published on February 29, March 7 and 14, 1996.

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

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

39. Pulaski 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.

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).

b. Basis For Decision

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. 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). Accordingly, in the instant case, it is important that prior owners at the proposed location operated with an on-premises beer and wine permit for a significant number of years. There have been no significant problems with the location during prior operations. Since the applicant will continue essentially the same business as the prior operators, such a factor indicates the permit should be granted.

Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). In granting the permit I note the business has not presented a law enforcement problem. A homicide in the area not at the proposed location is an insufficient basis to deny the permit. In fact, other than a break-in, there is no police documentation of criminal activity resulting from the location itself. Further, there is no documented evidence of law enforcement problems associated with alcohol at the location. In the instant case, the new owner will continue the former business. Additionally, 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). Here, traffic concerns are not a problem.

The distance to the Abundant Life Tabernacle is 421 feet. For purposes of the sale of alcohol, no license shall be granted to an applicant if a church is within 500 feet of the proposed location where the location is outside of a municipality. S.C. Code Ann. § 61-3-440 (Supp. 1995). The 500 foot rule, however, is not applicable to a beer and wine permit. Rather the requirement is that the proposed location shall not be within such a proximity to a church as to warrant denial of a permit. Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

Here, the church became operational after the proposed location was already in existence and at a time when prior operators were selling beer and wine for on-premises consumption. The prior operators have conducted the business in harmony with the church activities. I do not find reason to believe the current applicant will conduct business in a manner detrimental to the proper and orderly operation of the church activities. The history of the prior operators shows no loitering or loud noise from the location. The applicant testified he likewise would not allow loitering or loud noise and would conduct essentially the same business as that of prior operators. Accordingly, the proposed location will not be a detriment to the church nor to residents so as to present a problem to conducting worship services or residential living.

Finally, 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). Here, there is a least one similar establishment in the vicinity such that the granting of the permit will not significantly change the overall character of the area. Based upon all of the above, the permit is 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. 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).

6. 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).

7. The proximity of a proposed location to residences, churches, schools, and playgrounds is relevant to the review of an application for a permit. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991).

8. The proposed location shall not be within that degree of proximity to a church as to warrant denial of a permit. Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

9. It is 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).

10. 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).

11. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

12. 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).

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

14. 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).

15. 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 Pulaski's application for an on-premises beer and wine permit at Route 1, Box 4B, Hwy. 363N, Hampton, South Carolina.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 28th day of June, 1996.