ORDERS:
ORDER AND DECISION
I. Statement of the Case
The Petitioner, Hazel M. Messer (Messer) of Moore, South Carolina filed with the South Carolina
Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine
permit for 2413 Fairforest-Clevedale Road, Spartanburg, South Carolina. Fairforest Baptist Church
and members, Fairforest Church of God, Fairforest Elementary School, Fairforest Middle School, and
concerned citizens filed protests seeking to prevent DOR from granting the license. 23 S.C. Code
Regs. 7-90 (Supp. 1996) 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. 1996). The evidence
and relevant factors require granting the permit with restrictions.
II. Issue
Does Messer meet the requirements for an on-premises beer and wine permit?
III. Analysis
1. Positions of Parties:
Messer asserts she meets the requirements and particularly argues the location is proper. 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 August 21, 1996, Messer 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 110501.
3. The proposed business location and the place where the beer and wine permit will be utilized
is 2413 Fairforest-Clevedale Road, Spartanburg, South Carolina.
4. The business will operate as a restaurant under the name of Cross Road Station.
5. A protest to the application was filed by Fairforest Baptist Church and members, Fairforest
Church of God, Fairforest Elementary School, Fairforest Middle School, and concerned
citizens of the community.
6. Except for the unresolved suitability of location issue, DOR would have issued the permit.
7. The hearing was held in Spartanburg on February 6, 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
8. The State Law Enforcement Division (SLED) investigated the applicant's criminal
background.
9. The SLED report revealed no criminal violations.
10. The applicant's actions and conduct do not imply the absence of good moral character.
11. The applicant is of good moral character.
c. Legal Resident and Principal Place of Abode
12. Messer was born in South Carolina and has resided in South Carolina since her birth.
13. Messer holds a valid South Carolina driver's license.
14. Messer currently resides at 207 Old Salem Road, Moore, South Carolina, and resided in
South Carolina for more than 30 days prior to filing the application for a beer and wine
permit.
15. Messer 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
16. Messer has never had a beer and wine permit revoked.
e. Age
17. Messer's date of birth is June 12, 1949.
18. Messer is over twenty-one years of age.
f. Proposed Location
19. From the proposed location, Fairforest Baptist Church is .3 of a mile, the Ark Youth Shelter
is .3 of a mile and Forest Chapel is .5 of a mile.
20. The closest schools are Fairforest Elementary School and Fairforest Middle School, which
are both approximately .4 of a mile from the applicant's location.
21. Neither school is visible from the proposed location.
22. Beer and wine is sold under an off-premise permit by a nearby convenience store open 24
hours a day.
23. No evidence demonstrates a prior problem with crime in the area.
24. While accidents have been observed along Fairforest-Clevedale Road, no evidence
demonstrates accidents have occurred at the proposed location.
25. The location is adequately served by the traffic route of Fairforest-Clevedale Road.
26. While a number of residences are within a mile of the proposed location, the immediate area
is decidedly commercial.
27. The immediate area of the proposed location contains a barber shop, a beauty shop, an
automobile garage, and a used car dealer.
28. Immediately across the street from the proposed location is a commercial establishment
known as Precision Converters as well as an automotive repair shop a short distance away.29. The proposed location will operate as a restaurant serving a menu of sandwiches, soup,
barbecue, hotdogs, coffee, tea, soft drinks, and dessert pies and cakes.
30. The restaurant will seat approximately 25 to 30 patrons.
31. Parking space is limited at the proposed location.
32. The proposed location will close no later than 11:00 p.m.
33. The proposed location will not provide live entertainment.
g. Notice
34. Notice of the Messer application was published in the Spartanburg Herald-Journal, a
newspaper published and distributed in Spartanburg County, with notice published on July
13, 20 and 27, 1996.
35. Notice of the Messer application appeared at least once a week for three consecutive weeks
in a newspaper most likely to give notice to interested citizens of Spartanburg.
36. Messer gave notice to the public by displaying a sign for fifteen days at the proposed business.
37. Messer gave notice of the application by the required advertising by newspaper and display
of signs.
3. Discussion
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.
I conclude the permit must be granted with restrictions. Certainly, a location's proximity to
residences, churches, and schools can be 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). However, a significant balancing factor is whether the character
of the area is commercial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v.
S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Additionally, proper analysis
requires considering the existence of similar businesses in the area. Taylor v. Lewis, supra.
Here, the area is decidedly commercial. The immediate vicinity of the proposed location contains a
barber shop, a beauty shop, an automobile garage, and a used car dealer. Immediately across the
street from the proposed location is a commercial establishment known as Precision Converters as
well as an automotive repair shop a short distance away.
Additionally, beer and wine is already sold under an off-premises permit by a nearby convenience
store operating 24 hours a day. The evidence does not disclose any problem with church activities,
school functions or residential living resulting from the current beer and wine permit in the area.
Further, while the current application seeks an on-premises permit, the significant nature of the
restaurant business to be carried on at the proposed location does not present a major change to the
character of the neighborhood. Rather, the restaurant is compatible with the existing commercial
development in the area and will generally provide beer and wine in association with meals.
While the permit must be granted, a proper permit should address those factors tending to make the
proposed location less than 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). Here, the impact of the proposed location upon traffic
in the area, hours of operation, and the form of entertainment must be considered. Palmer, supra.
Here, the parking facilities are inadequate. Accordingly, the permit may only be granted by Messer
adding at least an additional eight parking spaces to the proposed location. Further, the area is such
that late hours of operation are not compatible with the community environment. Accordingly,
Messer's hours of operation will be limited so that the location will close no later than 11:00 p.m.
Finally, live entertainment is likewise inappropriate for this area. Messer's permit must prohibit the
use of live entertainment.
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. Distances to a school or church from a proposed location are legitimate considerations in the
review of a beer and wine permit but are not controlling factors. 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 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).
8. A significant factor is whether the character of the area is commercial. Taylor v. Lewis, 261
S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316
S.E.2d 705 (Ct. App. 1984).
9. 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).
10. The impact of the proposed location upon traffic in the area, hours of operation, and the form
of entertainment may be considered. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317
S.E.2d 476 (Ct. App. 1984).
11. The granting of a beer and wine permit is the granting of a privilege which may be restricted
under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d
22 (1943).
12. Permits are authorized by statute and regulation to be issued with restrictions. S.C. Code
Ann. § 61-5-190 (Supp. 1995); 23 S.C. Code Regs. 7-88 (1976).
13. Considering all relevant factors, with restrictions, 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. With restrictions, the applicant meets the requirements for the issuance of a beer and wine
permit.
IV. ORDER
DOR is ordered to grant Messer's application for an on-premises beer and wine permit at 2413
Fairforest-Clevedale Road, Spartanburg, South Carolina upon Messer signing an agreement with
DOR to adhere to the following restrictions:
1. Messer's closing hour must be no later than 11:00 p.m.
2. Messer must provide at least eight additional parking spaces beyond those spaces currently
available at the proposed location.
3. Messer must prohibit live entertainment at the proposed location.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative Law Judge
This 21st day of February, 1997
Columbia, South Carolina |
