ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Tracy Peeler (Peeler) of Gaffney, South Carolina filed with the South Carolina
Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine
permit and a nonprofit private club minibottle license for 829 Goldmine Spring Road, Gaffney,
South Carolina. Sheriff Bill Blanton and Wanda and Romain Fernanders filed protests seeking to
prevent DOR from granting the permit and the license. At the hearing the Fernanders' Motion to
Intervene as a party was granted. Section 7-90, 23 S.C. Code Regs. (Supp. 1995) and Section
7-3, 23 S.C. Code Regs. (Supp. 1995) for a beer and wine permit and for a mini-bottle license
respectively require a hearing. Jurisdiction is 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 and license.
II. Issues
Does Peeler meet the statutory requirements of S.C. Code Ann. § 61-9-320 (Supp. 1995) and
S.C. Code Ann. § 61-5-50 (Supp. 1995) ?
III. Analysis
1. Positions of Parties:
Peeler asserts he meets the 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 and the Fernanders 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 September 17, 1996, Peeler filed an application with the Department of Revenue
for an on-premises beer and wine permit and nonprofit private club minibottle license.
2. The applications are identified by DOR as AI 110924 and AI 110925.
3. The proposed location operating as Club Connections and the place where the beer and wine
permit and the mini-bottle license will be utilized is 829 Goldmine Spring Road, Gaffney, South
Carolina.
4. A protest to the application was filed by Sheriff Bill Blanton and by Wanda and Romain
Fernanders.
5. Except for the unresolved suitability of location issue, DOR would have issued the permit.
6. The hearing was held January 7, 1997, 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. Peeler was born in South Carolina and has resided in South Carolina since his birth.
12. Peeler holds a valid South Carolina driver's license.
13. Peeler currently resides at 111 Carver Street, Gaffney, South Carolina, and resided in South
Carolina for more than 30 days prior to filing the application for a beer and wine permit.
14. Peeler 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. Peeler has never been issued a beer and wine permit and has never had a beer and wine permit
revoked.
e. Age
16. Peeler's date of birth is May 29, 1970.
17. Peeler is over twenty-one years of age.
f. Proposed Location
18. Prior owner's of the existing location operated as a restaurant and lounge under the names of
the Harambee Club from 1986 to 1989 and as the Apollo Club from May of 1990 until 1995 with
both entities holding on-premises beer and wine permits and mini-bottle licenses.
19. The applicant will operate a private club at the same location as the former owners with hours
of operation from 9:00 p.m. until as late as 5:00 a.m. Thursday, Friday, and Saturday with hours
on Sunday as well.
20. The applicant seeks to enlist as members the former members of the Apollo Club.
21. The sheriff's department investigated numerous incidents of disturbances due to fighting as
well as shootings during the period the Apollo Club operated.
22. The area has a history of illegal drug activity.
23. Two deputies are assigned to a nearby apartment complex in an attempt to reduce the illegal
drug traffic in the housing complex known as Crestview.
24. Access to the proposed location from Crestview is available through trails through the
wooded area below Crestview with the distance to the proposed location approximately .3 of a
mile.
25. The trails have been used in illegal drug activity.
26. The Sheriff's opinion is that the proposed location will not be an asset to the community.
27. Eight churches are within a one mile radius of the proposed location.
28. No church filed a letter of protest with the DOR.
29. Mary Bramlett Elementary School is approximately .8 mile from the applicant's location.
30. The Salvation Army and a fenced-in field used for youth soccer by the Cherokee Recreation
District is 592 feet from the proposed location.
31. The location is not within the city limits and is not within 500 feet of any church, school, or
playground.
32. At least ten residences are within 1500 feet of the proposed location and an apartment
complex known as Crestview Apartments and a second apartment complex known as Colonial
Heights are both at a distance of .3 of a mile.
33. The area is predominately residential.
g. Notice
34. Notice of the Peeler application was published in The Cherokee Chronicle, a newspaper
published and distributed in Cherokee County, with notice published on September 19 and 24,
and October 1, 1996.
35. Notice of the Peeler application appeared at least once a week for three consecutive weeks in
a newspaper most likely to give notice to interested citizens of Gaffney.
36. Peeler gave notice to the public by displaying a sign for fifteen days at the proposed business.
37. Peeler 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 location of the place of business is a proper location. As to a mini-bottle license, while the
location is not within the prohibited zone of 500 feet from a school, church, or playground, (see
S.C. Code Ann § 61-3-440 (Supp. 1995)), the location must still be suitable. Schudel v. S.C.
ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). 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. The permit and
license must be denied.
The proximity of the location to residences and playgrounds is a proper factor for consideration.
William Byers v. S.C. ABC Comm'n, 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). In this application, within .3 of a mile of the
proposed location are at least ten single family residences and two multi-unit apartment
complexes. Further, less than 600 feet from the proposed location is a recreation field sponsored
by the Cherokee Recreation District. The field is used frequently by children living in the area.
Even absent the proximity to the residences and playground, law enforcement concerns weigh
against granting the application since criminal activity in an area is a consideration. Fowler v.
Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). Law enforcement concerns fall into two areas of
drug traffic and public disturbance.
First, the area has a history of drug activities. Two deputies are assigned to a nearby apartment
complex in an attempt to reduce the illegal drug traffic in the housing complex known as
Crestview. Access to the proposed location from Crestview is available through trails through the
wooded area below Crestview with the distance to the proposed location approximately .3 of a
mile. Further, the Sheriff testified the trails have been used in illegal drug activity and that the
addition of a location selling beer and mini-bottles will only hinder the existing efforts to reduce
crime in the area.
Second, the applicant's plan of operation will also exacerbate the non-drug criminal activity of the
area. The applicant plans to conduct essentially the same type of business as that operated by
former owners and intends to enlist as members, the former members of the Apollo Club. The
former operation and members of the Apollo Club caused the sheriff's department to investigate
numerous incidents of disturbances due to fighting as well as shootings. Here, the proposed
location plans to operate from 9:00 p.m until as late as 5:00 a.m. on at least Thursday, Friday, and
Saturday with Sunday hours planned also. The Sheriff's opinion was that the proposed location
would not be an asset to the community. The sheriff's representative testified the granting of the
permit and the license will increase the difficulty in policing the area and contribute to the existing
crime level.
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 seeks to operate a bona fide nonprofit organization. S.C. Code Ann. §
61-5-50(1) (Supp. 1995).
2. The applicant possesses good moral character. S.C. Code Ann. § 61-9-320(1) (Supp. 1995);
S.C. Code Ann. § 61-5-50(2) (Supp. 1995).
3. 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); S.C. Code Ann. § 61-5-50(7) (Supp.
1995).
4. 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).
5. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-9-320(5) (Supp. 1995);
S.C. Code Ann. § 61-5-50(6) (Supp. 1995).
6. For a mini-bottle license, even when a location is not within the prohibited zone of 500 feet
from a school, church, or playground, the location must still be suitable. Schudel v. S.C. ABC
Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981);See S.C. Code Ann § 61-3-440 (Supp. 1995).
7. 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).
8. 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).
9. The proximity of the location to residences and playgrounds is sufficient unto itself to deny an
application. William Byers v. S.C. ABC Comm'n, 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).
10. The proposed location is within an improper proximity to residences and requires denial of the
application.
11. Law enforcement considerations are valid considerations in granting a permit or license.
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
12. The proposed location creates law enforcement concerns of a magnitude requiring that the
application be denied.
13. Considering all relevant factors, the proposed location is not a proper location for a beer and
wine permit or for a mini-bottle license. S.C. Code Ann. § 61-9-320(6) (Supp. 1995); S.C. Code
Ann. § 61-5-50(3) (Supp. 1995).
14. The applicant's location is unsuitable and is not a proper location. S.C. Code Ann. §
61-9-320(6) (Supp. 1995); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).
15. 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); S.C. Code Ann. § 61-5-50(4) and (5)
(Supp. 1995).
16. The applicant does not meet the requirements for the issuance of a mini-bottle license
pursuant to S.C. Code Ann. § 61-5-50 (Supp. 1995).
17. The applicant does not meet the requirements for the issuance of an on-premises beer and
wine permit pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).
IV. ORDER
DOR is ordered to deny Peeler's application for an on-premises beer and wine permit and
non-profit private club minibottle license at 829 Goldmine Spring Road, Gaffney, South Carolina.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 9th day of January, 1997. |