SC Administrative Law Court Decisions

II. Issue

Does Hughes meet the statutory requirements for receiving an off-premises beer and wine permit?

III. Analysis

1. Positions of Parties:

Hughes asserts she meets all the requirements of the statute. DOR and Senator Fair, assert only one basis for denial of the permit: 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 14, 1996, Hughes 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 107935.
3. The proposed location of the business and the place where the beer and wine permit will be utilized is 1200 West Parker Road, Greenville, South Carolina.
4. The nature of the business is that of a convenience store doing business as Pot-O-Gold.
5. A protest to the application was filed by Senator Mike Fair and Lindsey D. Cole, Principal of Monaview Elementary School.
6. The hearing on this matter was held October 30, 1996, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, Senator Fair, and the protestants.

b. Moral Character

7. The State Law Enforcement Division (SLED) completed a criminal background investigation of the applicant.
8. The SLED report revealed no criminal violations. 9. The applicant has not engaged in acts or conduct that imply the absence of good moral character.
10. The applicant is of good moral character.

c. Legal Resident and Principal Place of Abode

11. Hughes was born in South Carolina and has resided in South Carolina since her birth.
12. Hughes holds a valid South Carolina driver's license. 13. Hughes currently resides at 242 Byrd Blvd., Greenville, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.
14. Hughes 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

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

e. Age

16. Hughes' date of birth is October 5, 1966.
17. Hughes is over twenty-one years of age.

f. Proposed Location

18. The proposed location has been operated by prior permit holders utilizing off-premises beer and wine permits.
19. Off-premises beer and wine sales at the proposed location have been made on virtually a continuous basis for fifteen years from 1981 through 1996.
20. There is no evidence that the prior permitted locations created problems in the community resulting from the sale of beer and wine.
21. There is no evidence of reported criminal activity at the proposed location during the past fifteen years.
22. There is no evidence that during the prior fifteen years the location of the school near the property presented problems associated with the presence of the school nor presented problems associated with children congregating at the location.
23. The applicant will operate a convenience store in much the same fashion as prior operators at the same location.
24. The proximity of the location to a church consists of Gospel Ministries approximately 46 feet from the proposed location.
25. Gospel Ministries will vacate its current location on November 1, 1996.
26. Monaview Elementary School is approximately 362 feet from the applicant's location via a route using sidewalks on West Parker and East Marion Road and approximately 158 feet using a route that does not access the sidewalks but which rather crosses the parking lot of the proposed location and crosses West Marion Road.
27. The Monaview Elementary School and playground is partially fenced with the school's ballfield unfenced.
28. The Monaview Elementary ballfield borders on West Marion Road. 29. Beer and wine is sold under an off-premises permit by at least one similar establishment approximately one-half mile from the proposed location.
30. The proposed location is adequately served by the traffic routes of West Parker Road and East Marion Road.
31. The proximity to residences consists of residential areas across West Parker Road and a residential area immediately behind the proposed location.
32. At least five commercial businesses operate in the immediate area of the proposed location
33. The area is a mixture of commercial and residential uses.

g. Notice

34. Notice of the Hughes application was published in The Greenville News, a newspaper published and distributed in Greenville County most likely to give notice to interested citizens of Greenville, with notice published at least once a week for three consecutive weeks.
35. Hughes gave notice to the public by displaying a sign for fifteen days at the site of the proposed business.
36. Hughes 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 proper.

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, a significant factor is whether the location has in the recent past been permitted and, if so, 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). Here, the prior owners at the proposed location operated with an off-premises beer and wine permit for at least fifteen years from 1981 to 1996. No evidence demonstrates any significant 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.

In deciding whether a permit should be granted, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). There is no documentation of criminal activity resulting from the location itself. Further, there is no documented evidence of law enforcement problems associated with alcohol at the location. Additionally, the impact of the proposed location upon traffic safety 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, no concerns over traffic were presented by any party.

The location of the proposed site in relation to churches, schools and residences must also be considered. Here, the proposed location does not prohibit the permit. The 46 foot distance to the Gospel Ministries is not an issue since the ministry will have vacated its current location by November 1, 1996. The distance to the school does not warrant denying the permit since the prior operation of beer and wine permits over a fifteen year period presented no problems for the school or the community.

Some concern was raised that since the school was within 500 feet of the proposed location, the permit should be denied. The 500 foot no-license zone for locations outside a municipality applies only to the sale of alcohol. S.C. Code Ann.  61-3-440 (Supp. 1995). The 500 foot rule is not applicable to a beer and wine permit since, rather than a set distance, beer and wine permits require that the proposed location not be within such a proximity to a school as to warrant denial of a permit. Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Here, the past fifteen years of peaceful and uneventful operation of a beer and wine permit at the proposed location demonstrates the proximity of the applicant's convenience store to the school does not present a basis for denying the permit. Likewise, the prior fifteen years of operation demonstrates the convenience store does not create a proximity problem to residences in the area.

In addition, I do not find reason to believe the current applicant will conduct business in a manner detrimental to the proper and orderly operation of the school or residential activities. The applicant testified she would not allow loitering, would conduct essentially the same business as that of prior operators, would install security cameras and fencing to prevent loitering, and would bar children unaccompanied by an adult from shopping in the store. Accordingly, the proposed location is within the statutory requirements for a permit.

Finally, the presence of similar existing businesses in the area is relevant. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, there is a least one similar establishment within a half mile of the proposed location such that the granting of the permit is consistent with commercial activities already present in the area. 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. The proximity of a proposed location to residences, churches, schools, and playgrounds can be a proper ground by itself to deny a permit to a proposed location. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991).
6. While not controlling, distances to a school from a proposed location are legitimate considerations in the review of a beer and wine permit. Moore v. S.C. ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
7. The 500 foot no-license zone for locations outside a municipality applies only to the sale of alcohol. S.C. Code Ann.  61-3-440 (Supp. 1995).
8. The 500 foot rule is not applicable to a beer and wine permit since, rather than a set distance, beer and wine permits require that the proposed location not be within such a proximity to a school as to warrant denial of a permit. Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
9. 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).
10. The fact that the location has in the recent past been permitted and that the location is now no less suitable than it was in the past is a factor in reviewing a permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
11. In deciding permits, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
12. The impact a proposed location will have upon traffic safety in an area is a relevant consideration in granting a permit. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984)
13. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann.  61-9-320(6) (Supp. 1995).
14. 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).
15. 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 Hughes' application for an off-premises beer and wine permit at 1200 West Parker Road, Greenville, South Carolina.

IT IS SO ORDERED.

____________________________
RAY N. STEVENS
Administrative Law Judge
This 4th day of November, 1996.