ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Paul S. Rossi (Rossi) of Travelers Rest, 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 1422 Geer Hwy., Travelers Rest, South Carolina. Carl Lee of Hilltop Freewill Baptist
Church, Pat Stidham, and Nancy and Rickey Bennefield, filed protests 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 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).
II. Issues
Does Rossi meet the statutory requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995)?
III. Analysis
1. Positions of Parties:
Rossi 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 February 27, 1996, Rossi 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 107549.
3. The proposed location of the business and the place where the beer and wine permit
will be utilized is 1422 Geer Hwy., Travelers Rest, South Carolina.
4. The nature of the business is that of a cafe doing business as Rossi's Italian Cafe.
5. A protest to the application was filed by Carl Lee on behalf of Hilltop Freewill Baptist
Church, Pat Stidham, and Nancy and Rickey Bennefield.
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.
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. Rossi was born in South Carolina and has resided in South Carolina since his birth.
13. Rossi holds a valid South Carolina driver's license.
14. Rossi currently resides at 30 Hawknest Road, Travelers Rest, South Carolina, and
resided in South Carolina for more than 30 days prior to filing the application for a
beer and wine permit.
15. Rossi 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. Rossi has never had a beer and wine permit revoked.
e. Age
17. Rossi's date of birth is March 6, 1957.
18. Rossi is over twenty-one years of age.
f. Proposed Location
19. The activities of the proposed location will not have a negative impact upon residential
activities.
20. The restaurant's operations are conducted as a full service restaurant with a menu of
meals offering more than thirty-five selections ranging from appetizers to desserts.
21. The proposed location has no bar facilities.
22. The proposed location has no plans for live entertainment or music.
23. The restaurant is closed by 9:30 p.m. and is not open on Sunday.
24. The restaurant serves lunch from 11:30 a.m until 2:30 p.m. and closes until reopening
at 5:00 for dinner.
25. The restaurant is closed during the afternoon hours that school children are dropped
off by school buses in the vicinity.
26. There has been no reported criminal activity at the proposed location during the period
the proposed location has been operated by Rossi.
27. Hilltop Freewill Baptist Church is 1,056 feet to the nearest entrance of the proposed
location.
28. The proposed location is not visible from Hilltop Freewill Baptist Church.
29. The proximity of the proposed location is not detrimental to the operation of churches
and church activities in the area.
30. A Texaco station less than a fourth of a mile from the proposed location holds an off-premises beer and wine permit.
31. No law enforcement data demonstrates the location is unsafe or a hazard for motor
vehicles or pedestrians.
32. The location is adequately served by the traffic route of Hwy. 276.
g Notice
33. Notice of the Rossi application was published in The Greenville News, a newspaper
published and distributed in Greenville County, with notice published on February 15,
19 and 26, 1996.
34. Notice of the Rossi application appeared at least once a week for three consecutive
weeks in a newspaper most likely to give notice to interested citizens of Travelers
Rest.
35. Rossi gave notice to the public by displaying a sign for fifteen days at the site of the
proposed business.
36. Rossi 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).
b. Basis for Decision
Considering all relevant factors, the permit is properly granted. Several factors lead to this
conclusion. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54,
194 S.E.2d 191 (1973). Here, the proposed location is already in operation as an Italian
restaurant seating approximately 50 customers. The period of operation has demonstrated no
criminal activity associated with the location.
The impact of a 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, the proposed
location has adequate parking and is accessed by Highway 276. While the highway carries
extensive traffic, there is no law enforcement data showing the location to be unsafe or a
hazard for motor vehicles or pedestrians.
The proximity of a location to residences and churches is a proper consideration. 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). Here, the activities of the restaurant will not
have a negative impact upon residential activities or church activities. The restaurant's
operations are conducted as a full service restaurant with a menu of meals offering more than
thirty-five selections ranging from appetizers to desserts. In addition, the facilities do not
include a bar area. Rather, beer or wine is served in conjunction with meals. There are no
plans for live entertainment or music so that there is no likelihood of excessive noise. In
addition, the hours of operation of the proposed location are such that the restaurant is closed
by 9:30 p.m. and is not open on Sunday. Further, the restaurant serves lunch from 11:30 a.m.
until 2:30 p.m. and closes until reopening at 5:00 for dinner. Accordingly, the restaurant is
closed during the hours that school children are dropped off by school buses in the vicinity.
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, a Texaco station less than a fourth of
a mile from the proposed location holds an off-premises beer and wine permit. While such a
factor alone is not dispositive of the current application, when considered with other factors,
the fact that beer and wine is already sold in the community does support the conclusion that
no significant change in the character of the community will occur from a full service
restaurant holding a permit. 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 find the permit is proper.
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. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194
S.E.2d 191 (1973).
8. The impact of a 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).
9. The proximity of a proposed location to residences and churches is a proper ground
to consider in reviewing an application for a permit at a proposed location. S.C. ABC
Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991).
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. 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).
IV. ORDER
DOR is ordered to grant Rossi's application for an on-premises beer and wine permit at
1422 Geer Hwy., Travelers Rest, South Carolina.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 18th day of July, 1996. |
