SC Administrative Law Court Decisions

The Petitioner, Harry A. Thomas (Thomas) of North Myrtle Beach, 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 #2 East Hwy. 90, Nixon Cross Roads, Little River, South Carolina. Rev. Harry Tokunaga on behalf of New Life Fellowship, Jerry Thompson, Kimberly Ritz and Sharon Knott 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).

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

III. Analysis

1. Positions of Parties:

Thomas 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 protest concerns only whether the proposed location is proper.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about April 1, 1996, Thomas 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 108264.

3. The proposed location of the business and the place where the beer and wine permit will be utilized is #2 East Hwy. 90, Nixon Cross Roads, Little River, South Carolina.

4. The nature of the business is that of a general restaurant with game room doing business as Cross Roads Sports Grill.

5. Protests to the application were filed by Jerry Thompson, Kimberly Ritz, Sharon Knott, and Rev. Harry Tokunaga on behalf of New Life Fellowship.

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 10, 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. Thomas has resided in South Carolina since 1955.

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

14. Thomas currently resides at 804 Tillson Road, North Myrtle Beach, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

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

e. Age

17. Thomas' date of birth is January 6, 1950.

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

f. Proposed Location

19. At least as late as 1988, prior owners of the existing location operated with an on-premises beer and wine permit as well as a mini-bottle license.

20. There is no evidence of reported criminal activity at the proposed location.

21. New Life Fellowship has been in existence for approximately a year and has thirty-four members.

22. New Life Fellowship holds its services in the building next door to the proposed location with the distance from the church to the proposed location being 311.5 feet.

23. The building used by New Life Fellowship is not owned by the church but is provided rent-free for the church's use on Sunday.

24. The church has a building fund that has as one of its purposes the eventual construction of a church building to remove the need to meet at the Big Barn Restaurant.

25. A fence separates the proposed location from the church.

26. Other than on Sunday, the building in which the church meets is used as a restaurant known as the Big Barn Restaurant.

27. The proximity of the proposed location to the church does not present a detriment to church activities.

28. On-premises consumption of beer and wine or minibottles is permitted at numerous establishments in the immediate area including the Moose Lodge, R. W. Wood's General Merchandise, Nancy's, VFW, Billy-the-Kid, and Marker 350 at Harbor Gate.

29. The location is adequately served by the traffic routes of Hwy. 9 and Hwy. 90.

30. The proximity of the proposed location to residences does not present a detriment to residential activities.

31. The area is predominately commercial.

g. Notice

32. Notice of the Thomas application was published in the Sun News, a newspaper published and distributed in Horry County, with notice published on March 29, April 5 and 12, 1996.

33. Notice of the Thomas application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Little River.

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

35. Thomas 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. Explanation of Decision

The permit must be granted in this case. The proximity of the location to a church is a factor in examining a permit request. 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, however, the proposed location has little or no likelihood of disruption to the church services of New Life Fellowship given the fence separating the proposed location from the church and the church's limited use of the building in which it holds its services. In addition, the church has chosen to locate in an area which is highly commercial. The commercial character of an entire area is a factor weighing in favor of the applicant. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Additionally, there is no evidence of criminal activity associated with the proposed location and thus no indication the granting of the permit would be unwarranted. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (law enforcement considerations are relevant to permitting issues.)

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). The testimony established there are at least six establishments in the immediate area providing on-premises consumption of beer and wine or minibottles. Considering the evidence as a whole, there is no showing that the issuance of an on-premises beer and wine permit will negatively change the character of the existing community. Accordingly, the permit must be 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. The proximity of a proposed location to a church is a relevant factor in deciding if a location is a proper location. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991).

6. 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).

7. Geography alone is not the sole consideration of suitability, but rather any impact on the community may be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

8. An extensive commercial character found in the entire area is a factor weighing in favor of granting the permit. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

9. The existence of other similar businesses in the area providing beer and wine is a factor in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

10. Evidence of criminal activity is relevant in deciding if a location is proper. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (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).

DOR is ordered to grant Thomas' application for an on-premises beer and wine permit at #2 East Hwy. 90, Nixon Cross Roads, Little River, South Carolina.

IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

This 11th day of July, 1996.