ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Robert Haney (Haney) of Easley, 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 1599 Piedmont Hwy., Greenville, South Carolina. Deputy Joe Garner and Sheriff
Johnny Mack Brown on behalf of the Greenville County Sheriff's Office, filed a protest seeking to
prevent DOR from granting the license. A hearing on the application is required under 23 S.C. Code
Regs. 7-90 (Supp. 1995) with jurisdiction in the Administrative Law Judge Division (ALJD) under
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 denied. 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).
II. Issue
Does Haney meet the statutory requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995)?
III. Analysis
1. Positions of Parties:
Haney 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: improper location.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
a. General
1. On or about February 16, 1996, Haney 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 107363.
3. The proposed location of the business and the place where the beer and wine permit will be
utilized is 1599 Piedmont Hwy., Greenville, South Carolina.
4. The nature of the business is that of a convenience store doing business as Captain Blackjacks
Quick Stop.
5. A protest to the application was filed by Deputy Joe Garner and Sheriff Johnny Mack Brown
on behalf of the Greenville County Sheriff's Office.
6. Except for the unresolved issue of suitability of location, DOR would have issued the permit.
7. The hearing on this matter was held July 9, 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 involving moral turpitude.
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 Residence and Principal Place of Abode
12. Haney was born in South Carolina and has resided in South Carolina since his birth.
13. Haney holds a valid South Carolina driver's license.
14. Haney currently resides at 1207 Pineview Dr., Easley, South Carolina, and has resided in
South Carolina for more than 30 days prior to filing the application for a beer and wine
permit.
15. Haney is both a legal resident of the United States and South Carolina and has 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. Haney has never had a beer and wine permit revoked.
e. Age
17. Haney's date of birth is October 4, 1964.
18. Haney is over twenty-one years of age.
f. Proposed Location
19. The proposed location is directly across the street from a playground and park.
20. The proposed location's hours of operation are six days a week from 7:00 a.m. until 2:00 a.m.
21. The park's hours overlap the hours of the business since the park opens in the early morning
daylight hours and closes at 11:00 p.m. or later depending upon activities at the park.
22. The proposed location's hours of operation are incompatible with the hours of operation of
the park.
23. Children commonly access the park by foot.
24. The park's main gate is approximately 1,043 feet from the proposed location.
25. Entrance from a side gate of the park is approximately 528 feet from the proposed location.
26. The proposed location is directly across the street from the park at an approximate distance
of 79 feet.
27. Access to the park is not restricted to the gates.
28. Park access is unobstructed to foot traffic in that no fence borders the park.
29. Children living in the surrounding area have entered and will continue to enter the park by
crossing Highway 20.
30. Highway 20 is a two lane road.
31. Children have crossed Highway 20 to access the park by utilizing crossing points at various
locations including points near the proposed location.
32. The presence of children in the area is extensive.
33. The park is the most heavily used recreation park in the Greenville Recreation District.
34. The park is utilized by youth in organized leagues as well as on an individual basis.
35. The park is over 100 acres and includes four baseball and softball fields, a soccer field, tennis
courts, basketball courts, volleyball courts, a swimming pool, and a picnic shelter.
36. As many as four baseball and softball games occur each night in season in the spring and
summer with each game drawing approximately 60 to 70 people.
37. In the fall and winter, the fields are used for football and soccer.
38. The sale of beer and wine by an on-premises seller 79 feet from the park negatively impinges
upon the character and nature of the immediate area.
39. Park policy prohibits the presence of beer or alcohol on the grounds.
40. Park officials have enforced the prohibition rule.
41. Park officials have declined to hold events at the park when the event is sponsored by beer
distributors.
42. The presence of other locations with beer and wine permits does not result in a decision to
grant the permit.
43. Victory's Cafe holds an on-premises beer and wine permit at a distance approximately 200
feet from the proposed location.
44. Victory's is in a direction moving away from the park and is not situated directly across the
street from the park.
45. Other establishments with beer and wine permits are further away at distances between 300
feet up to 2000 feet from the proposed location.
g. Notice
46. Notice of the Haney application was published in The Greenville News, a newspaper
published and distributed in Greenville County, with notice published on January 25, 29, and
February 5, 1996.
47. Notice of the Haney application appeared at least once a week for three consecutive weeks
in a newspaper most likely to give notice to interested citizens of Greenville.
48. Haney gave notice to the public by displaying a sign for fifteen days at the site of the proposed
business.
49. Haney 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 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).
A significant factor in a permit review is the proximity of a location to a playground since that factor
by itself is a sufficient ground to deny a 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).
Further, permits have been denied where the proposed location was directly across the street from
a playground area. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981).
b. Explanation For Decision
The permit must be denied. Here, the facts demonstrate the proximity of the proposed location
immediately across the street from the playground and park is not compatible with the addition of an
on-premises beer and wine permit.
The proposed location will operate at a time inappropriate to the operation of the park. The
proposed location will open six days a week from 7:00 a.m. until 2:00 a.m. The park's hours overlap
the hours of the business in that the park opens in the early morning daylight hours and closes at
11:00 p.m. or later depending upon activities at the park.
Further, a common means for children to access the park is by foot. Such a circumstance is
incompatible with the proposed location. Access via the park's main gate is approximately 1,043 feet
from the proposed location with an entrance from a side gate approximately 528 feet from the
proposed location. In addition, the proposed location itself is approximately 79 feet from the park.
Access to the park is not restricted to the gates but rather park access is unobstructed in that no fence
borders the park. Children living in the surrounding area have entered and will continue to enter the
park by crossing Highway 20, a two lane road, at various points including points near the proposed
location.
The presence of children in the area is extensive. The park, the most heavily used recreation park in
the Greenville Recreation District, is utilized by youth in organized leagues as well as on an individual
basis. The park is over 100 acres and includes four baseball and softball fields, a soccer field, tennis
courts, basketball courts, volleyball courts, a swimming pool, and a picnic shelter. As many as four
baseball and softball games occur each night in season in the spring and summer with each game
drawing approximately 60 to 70 people. In the fall and winter, the fields are used for football and
soccer.
Finally, given the extensive use of the park in this community, the sale of beer and wine by an
on-premises seller only 79 feet from the park negatively impinges upon the character and nature of
the immediate area. This incompatibility is demonstrated by the policies of the community park itself.
Park policy prohibits the presence of beer or alcohol on the grounds. In the past, park officials have
found violations of the rule and in those instances have enforced the prohibition rule. In furtherance
of its policy, park officials have declined to hold events at the park when the event is sponsored by
beer distributors.
I recognize that 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, when considering all factors, the presence of
other locations does not result in granting the permit. Victory's Cafe holds an on-premises beer and
wine permit at a distance approximately 200 feet from the proposed location. Victory's, however, |
