SC Administrative Law Court Decisions

The Petitioner, Edgar A. Buck (Buck), 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 701 Longpoint Road, Mt. Pleasant, South Carolina. Connie Williams and R. Carl Schooling (Protestants), filed protests seeking to prevent DOR from granting the license. While the letters of protest were noted in the file, no appearance was made by Connie Williams or R. Carl Schooling.

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).

Does Buck meet the statutory requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995) by demonstrating he possesses good moral character, has been a legal resident of the United States and South Carolina for 30 days, has held a principal place of abode in South Carolina for 30 days prior to filing the application, has not had a beer or wine permit revoked within two years of the date of the current application, is twenty-one years of age or older, will utilize the permit at a proposed location that is proper, and gave notice of the application by way of required advertising by newspaper and the display of signs?

III. Analysis

1. Positions of Parties:

Buck 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 March 11, 1996, Buck 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 107851.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is 701 Longpoint Road, Mt. Pleasant, South Carolina.

4. The nature of the business is that of a convenience store doing business as Exxon Food Mart #4.

5. A protest to the application was filed by protestants.

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

7. The hearing on this matter was held May 20, 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. Buck was born in South Carolina and has resided in South Carolina since his birth.

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

14. Buck currently resides at P.O. Box 31894, 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. Buck 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. Buck has never had a beer and wine permit revoked.

e. Age

17. Buck's date of birth is July 23, 1941.

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

f. Proposed Location

19. The proposed location will be an asset to the community since it will operate as a convenience store in a community where there is currently no convenience store.

20. The immediate area has commercial activity including a Waffle House, industrial activity including the manufacture of cement, and residential activity including a housing subdivision.

21. There is no evidence of reported criminal activity in the area of the proposed location.

22. Seacoast Christian Community Church is approximately 1200 feet and East Cooper Baptist Church is approximately 2600 feet distance from the proposed location.

23. Belle Hall Elementary School is approximately 1800 feet from the location.

24. There is no evidence of children being required, due to location of a school, to have to walk in close proximity to the proposed location.

25. The proximity of the proposed location to churches, residences and a school does not raise concerns sufficient to deny the granting of a permit.

26. No protests were presented to DOR by the churches or school in the area.

27. The City of Mount Pleasant has annexed the proposed location and will provide police and fire protection.

28. The location is adequately served by traffic routes of Longpoint Road and Egypt Road.

29. The area is commercially developed and the proposed location's proximity to I-526 (.5 of a mile away) is consistent with the make-up of the community.

g. Notice

30. Notice of the Buck application was published in the The Post and Courier, a newspaper published and distributed in Charleston County, with notice published on February 6, 13 and 20, 1996.

31. Notice of the Buck application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Mt. Pleasant.

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

33. Buck 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).

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. 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. 167, 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, 317 S.E.2d at 478. 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. Here, the evidence demonstrates the convenience store will be an asset to the community in that it provides services and goods not previously available to the area. The distances to churches, schools and residences are sufficient not to present a problem to conducting worship services, educational activities or residential living. The distance to the school and the churches is significant enough to provide a meaningful separation from the proposed location. Additionally, there is no evidence of criminal activity at the location nor of any traffic concerns at the location. Finally, the area is a mixture of commercial, industrial and residential uses and the introduction of a convenience store is compatible with the existing community uses.

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 fact that a proposed location will be an asset to the community is a relevant factor in deciding whether to grant or deny a permit. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

6. Lack of law enforcement concerns are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

7. The character of an area as commercial may be considered in the issuance of a permit. 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).

8. The proximity of a proposed location to residences, churches, schools, and playgrounds is a consideration in reviewing a permit application. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

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

10. 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).

11. 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 Buck's application for an off-premises beer and wine permit at 701 Longpoint Road, Mt. Pleasant, South Carolina.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 21st day of May, 1996.