ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Britton S. Parker (Parker) of Lancaster, South Carolina filed with the South
Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer
and wine permit for 3251A Kershaw Hwy., Kershaw, South Carolina. Sheriff Stephen D.
McCaskill, Rev. Robert N. Rivers, and Senator Donald H. Holland filed protests seeking to
prevent DOR from granting the license. Section 23 S.C. Code Regs. 7-90 (Supp. 1995) requires
a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code
Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1995). The evidence and relevant factors require
denying the permit.
II. Issues
Does Parker meet the statutory requirements for an on-premises beer and wine permit?
III. Analysis
1. Positions of Parties:
Parker asserts he meets all statutory requirements. DOR states that since a protest prevents the
granting of a permit until a hearing is held, DOR awaits the outcome of that hearing. The
protestants assert only one basis for denying 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 May 8, 1996, Parker 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 107918.
3. The proposed business location and the place where the beer and wine permit will be utilized is
3251A Kershaw Hwy., Kershaw, South Carolina.
4. Protests to the application were filed by Sheriff Stephen D. McCaskill, Rev. Robert N. Rivers,
and Senator Donald H. Holland.
5. Except for the unresolved suitability of location issue, DOR would have issued the permit.
6. The hearing was held December 16, 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
7. The State Law Enforcement Division (SLED) investigated the applicant's criminal background.
8. The SLED report revealed no criminal violations.
9. The applicant's actions and conduct do not imply the absence of good moral character.
10. The applicant is of good moral character.
c. Legal Resident and Principal Place of Abode
11. Parker was born in South Carolina and has resided in South Carolina since his birth.
12. Parker holds a valid South Carolina driver's license.
13. Parker currently resides at 1824 McIlwain Road, Lancaster, South Carolina, and resided in
South Carolina for more than 30 days prior to filing the application for a beer and wine permit.
14. Parker is a legal resident of the United States and South Carolina, 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
15. Parker has never had a beer and wine permit revoked.
e. Age
16. Parker's date of birth is December 26, 1971.
17. Parker is over twenty-one years of age.
f. Proposed Location
18. The existing location operates a cash intensive business of video games and a convenience
store.
19. No beer or wine permit has ever been utilized on the premises.
20. The applicant seeks an on-premises beer and wine permit.
21. A county recreation area consisting of tennis courts, softball fields, community center, and
playground is within .5 mile of the proposed location.
22. Children utilize the recreation area and playground through five youth leagues.
23. Children utilize the recreation area through nineteen "adult" leagues since children over the
age of fourteen participate in the adult leagues.
24. Access to the recreation area is by two entrances on Highway 521.
25. Access to the proposed location is on Highway 521.
26. Activities at the playground and recreation park coincide with the activities of the proposed
location since the hours of operation of each overlap due to the proposed location being open
twenty-four hours a day.
27. The proposed location has been the site of an armed robbery investigated by the Kershaw
County Sheriff's Department.
28. Two other robberies of similar cash intensive businesses at some distance from the proposed
location have also occurred in the recent past.
29. A church, Bethany Baptist Church, is 1,416 feet from the proposed location.
30. While a beer and wine permit is present at an establishment some distance from the proposed
location, no beer and wine permits or alcohol licenses are present in the immediate vicinity.
31. At least one beer and wine permit is in use at an establishment approximately a mile distant
from the proposed location.
32. The location is adequately served by the traffic route of Hwy. 521.
33. The proximity to residences consists of several residences across from the proposed location.
34. The area is predominately rural and residential.
g. Notice
35. Notice of the Parker application was published in the Chronicle-Independent, a newspaper
published and distributed in Kershaw County, with notice published on March 6, 11, and 18,
1996.
36. Notice of the Parker application appeared at least once a week for three consecutive weeks in
a newspaper most likely to give notice to interested citizens of Kershaw.
37. Parker gave notice to the public by displaying a sign for fifteen days at the proposed business.
38. Parker gave notice of the application by the required advertising by newspaper and display of
signs.
3. Discussion
a. General Criteria
The applicant satisfies the requirements of having 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 proposed location 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 suitability consideration, 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
Whether a proposed location is proper is highly factual and is based upon the weighing and
balancing of numerous considerations. Considering all relevant factors and giving due weight to
the evidence presented at the hearing, the permit must be denied.
A location's proximity to one of several identified activities including, among others, a playground
is a proper ground by itself to deny the 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). Here, a county recreation area consisting of tennis courts, softball fields, community
center, and playground is within .5 mile of the proposed location. The testimony demonstrates
that children utilize the area through youth leagues and that children over the age of fourteen
participate in "adult" leagues at the park as well. Access to the recreation area is by two entrances
on Highway 521, the same road used to access the proposed location. Thus, activities at the
playground and recreation park and at the proposed location will coincide. The proposed location
shares a common route of access (Highway 521) and the hours of operation overlap since the
proposed location is open twenty-four hours a day. The proximity of the proposed location to the
community recreation park and playground requires denial of the permit.
Additionally, law enforcement considerations confirm that a denial is required. Fowler v. Lewis,
260 S.C. 54, 194 S.E.2d 191 (1973). The proposed location operates a cash intensive business
open twenty-four hours a day, six days a week. The sheriff's department expressed concern that
the addition of an on-premises beer and wine permit for this type of business in an area at the
extremity of the county would diminish the department's ability to provide adequate police
protection. This concern is very real since the proposed location has already been the object of an
armed robbery since opening in March of 1996. Further, two other robberies of similar cash
intensive businesses at some distance from the proposed location have also been robbed in the
recent past. Thus, law enforcement limitations in an area demonstrated to have a crime problem
prevent the granting of the permit.
Finally, the general character of the area as rural and residential prohibits the granting of the
permit. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, to
the extent the rural area is populated, the area is residential in character and other commercial
establishments are lacking in the immediate vicinity. Rather, the immediate area includes a
church, a parsonage and several residences. Such an environment is not conducive to an
on-premises permit.
In summary, based upon all of the evidence, the permit must be denied. The proposed location's
proximity to the recreation park and playground is inappropriate, a lack of adequate law
enforcement for an area undergoing criminal activity prevents granting the permit, and the general
character of the area as rural and residential confirms the denial is required.
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 is 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); Moore v. S.C. ABC Comm'n, 308 S.C. 167, 417
S.E.2d 555 (1992).
6. Additionally, a strain or limitation of law enforcement in an area demonstrated to have a crime
problem is a ground for denial of a permit. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191
(1973).
7. The general character of an area as rural and residential is a ground for prohibiting the granting
of a permit. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
8. Considering all relevant factors, the proposed location is not a proper location. S.C. Code
Ann. § 61-9-320(6) (Supp. 1995).
9. 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).
10. 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 deny Parker's application for an on-premises beer and wine permit at 3251A
Kershaw Hwy., Kershaw, South Carolina.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 18th day of December, 1996. |
