SC Administrative Law Court Decisions

The Petitioner, Jose A. Urena (Urena) of Charleston, 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 608 Harborview Road, James Island, South Carolina. James Palmer, Jr. filed a protest seeking to prevent DOR from granting the license. A hearing on the application was required pursuant to 23 S.C. Code Regs. 7-90 (Supp. 1995). The Administrative Law Judge Division (ALJD) has jurisdiction 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 Urena meet the statutory requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995)?

III. Analysis

1. Positions of Parties:

Urena 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 February 21, 1996, Urena 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 107428.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is 608 Harborview Road, James Island, South Carolina.

4. The nature of the business is that of a convenience store doing business as C & J Country Store.

5. A protest to the application was filed by James Palmer, Jr.

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 26, 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. Urena has resided in South Carolina since December 6, 1995.

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

14. Urena currently resides at 2314 King Edward Drive, Charleston, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

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

e. Age

17. Urena's date of birth is December 9, 1965.

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

f. Proposed Location

19. Prior operators of the existing location have operated with an off-premises beer and wine permit at least from the late 1980's until approximately late 1995.

20. The applicant will continue the same business as the prior operators.

21. There has been no reported criminal activity at the proposed location during the period of prior ownership.

22. There is no church or playground in proximity to the proposed location.

23. The location is adequately served by traffic routes of Harborview Road and Sterling Road.

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

25. The area is a mixture of commercial activity with major traffic arteries along with residential use in the vicinity.

26. The degree of commercial use in the area results in the vicinity being compatible with the granting of a permit.

g. Notice

27. Notice of the Urena application was published in The Post and Courier, a newspaper published and distributed in Charleston County, with notice published on February 17, 24 and March 2, 1996.

28. Notice of the Urena application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of James Island.

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

30. Urena gave notice of the application by 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 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 off-premises beer and wine permit for a significant number of years. There have been no 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. In fact, there is no police documentation of criminal activity resulting from the location itself and there is no documented evidence of law enforcement problems associated with alcohol at the location. 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 due to parking availability and adequate highway access.

Finally, the general character of the area as 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). Here, the area is a mixture of commercial activity with major traffic arteries along with some residential use in the vicinity. The degree of commercial use in the area results in the vicinity being compatible with the granting of the permit. 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 is a proper consideration in reviewing a permit application. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991).

8. 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).

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

10. 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).

11. Considering all relevant factors, 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).

DOR is ordered to grant Urena's application for an off-premises beer and wine permit at 608 Harborview Road, James Island, South Carolina.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 28th day of June, 1996.