ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Walter R. Hoover (Hoover) of Columbia, South Carolina, filed with the
Respondent, South Carolina Department of Revenue (DOR), an application for a business sale
and consumption (mini-bottle) license and an on-premises beer and wine permit. DOR declined to
process the applications since in December of 1991 the proposed location was found unsuitable
by a previous order of the former Alcoholic Beverage Control (ABC) Commission. Under 23
S.C. Code Regs. 7-96 (1976), an application for a location previously found unsuitable for a beer
and wine permit will not be processed unless the applicant can show some material change with
respect to the location has occurred since the prior denial. Likewise, 23 S.C. Code Regs. 7-19.1
(1976) states similar language for a prior denial of a mini-bottle license.
The hearing in this matter was held on February 3, 1997, with jurisdiction vested in the ALJD
under S.C. Code Ann. §§61-1-55 (Supp. 1995), 1-23-600(B) (Supp. 1995) and 1-23-310 (Supp.
1995). I find DOR is not required to process Hoover's application since material changes have
not taken place since the prior denial.
II. Issues
1. Does Hoover's application seek a mini-bottle license or a beer and wine permit for a location
previously found unsuitable in 1991?
2. If yes, have material changes in respect to the location occurred since the prior finding of
unsuitability?
III. Analysis
A. Same Location
1. Positions of Parties:
While not directly argued, Hoover indirectly asserts he is submitting applications for a new
location not previously denied. Such assertion is supported by alleging the current location is
smaller and now carries a different mailing address than the former location. DOR asserts the
current location is in all material respects the same as the former location previously denied in
1991.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. During August of 1991, A. Todd Hunnicutt (Hunnicutt) filed an application with the ABC
Commission for an on-premises beer and wine permit and a mini-bottle license for 1722 Broad
River Road, Columbia, South Carolina.
2. The proposed location was to utilize the permit and license as a restaurant and bar in a strip
shopping center.
3. The proposed location would have been the corner space in the strip shopping center where
the two portions of the shopping center met to form an "L" shape.
4. The 1991 application was denied by the former ABC Commission in December of 1991.
5. In July of 1996, Hoover filed with DOR an application for an on-premises beer and wine permit
and a mini-bottle license.
6. The proposed location for the Hoover application is 1722-J Broad River Road, Columbia,
South Carolina.
7. Hoover's proposed location is the corner space in the strip shopping center where the two
portions of the shopping center met to form an "L" shape.
8. Hoover's proposed location physically occupies the same space as that location proposed by
Hunnicutt with the exception that Hoover's proposed location will occupy a smaller number of
square feet than that proposed by Hunnicutt.
9. Hoover's proposed location is the same as the Hunnicutt proposed location previously denied
by the ABC Commission in 1991.
3. Discussion
The first issue is whether the Hoover application seeks a license and permit for the same location
denied to Hunnicutt in 1991. If yes, the restrictions of S.C. Code Regs. 7-96 and 7-19.1 apply.
Considering all of the facts, the Hoover application seeks a permit for the same location
previously denied to Hunnicutt as unsuitable in 1991.
Under the facts here, in August of 1991, Hunnicutt filed an application with the ABC Commission
for both an on-premises beer and wine permit and a mini-bottle license for 1722 Broad River
Road, Columbia, South Carolina. The Hunnicutt proposed location would have occupied the
corner space in the strip shopping center where the two portions of the shopping center meet to
form an "L" shape. Hoover's application of 1996 has a proposed location that is the same corner
space in the same strip shopping center as that proposed by Hunnicutt in 1991.
No meaningful differences exist between the Hunnicutt location and the Hoover location. The
new mailing address of 1722-J Broad River Road, Columbia, South Carolina has been established
solely due to Hoover's intent to convert the back door of the location into the front door. While
Hoover's proposed location will be smaller than Hunnicutt's, Hoover's will still physically occupy
the same floor space, just fewer square feet. In all other respects, however, the two proposed
locations are essentially identical. A mere change in mailing address and the occupying of less
floor space do not create a new location. Accordingly, the Hunnicutt proposed location
previously denied in 1991 is the same as the Hoover proposed location now under review.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. DOR shall not process an off-premises beer and wine permit where an application has been
denied by the S.C. Alcoholic Beverage Control Commission unless some material change with
respect to the location has occurred. 23 S.C. Code Regs. 7-96 (1976).
2. DOR shall not process a mini-bottle license where an application has been denied by the S. C.
Alcoholic Beverage Control Commission unless some material change with respect to the location
has occurred. 23 S.C. Code Regs. 7-19.1 (1976).
3. The word "location" in the regulation is not defined. 23 S.C. Code Regs. 7-96 and 7-19.1
(1976).
4. The word "location" is ambiguous since it has doubtful or doubleness of meaning and it is
capable of being understood by reasonably well-informed persons in either of two or more senses.
Chapman v. Metropolitan Life Ins. Co., 172 S.C. 250, 173 S.E. 801, 803 (1934); Southeastern
Fire Ins. Co. v. S.C. Tax Comm'n, 253 SC 407, 171 S.E.2d 355 (1969); State ex rel. Neelen v.
Lucas, 24 Wis. 2d 262, 128 N.W.2d 425 (1964).
5. Ambiguous language should be interpreted so as to ascertain and give effect to the intent or
purpose behind the language. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975).
6. The intent of language used should be ascertained primarily by adopting the plain usage of the
words employed in the provision being interpreted. 82 C.J.S. Statutes § 322(b) (1953).
7. The intent of S.C. Code Regs. 7-96 and 7.19.1 is to end litigation by limiting to one the number
of administrative reviews when the same property has been previously denied as to location.
8. To limit the meaning of the word "location" to the footprint of the building or other specified
point on the property under review does not further the intent of the regulation but rather
encourages relitigation since the applicant could move his "location" to a different point on the
property and simply reapply as a new location.
9. To limit the meaning of the word "location" to the footprint of the building or other specified
point on the property under review does not further the intent of the regulation but rather
encourages relitigation since the view gives too little credence to the premise that the issue of
proper location is not simply a matter of geography. Kearney v. Allen,287 S.C. 324, 338 S.E.2d
335 (1985).
10. Since the prior denied Hunnicutt location consists of essentially the same physical space as
that submitted by Hoover, the Hoover application seeks a permit and license for a location
previously denied as unsuitable. S.C. Code Regs. 7-96 (1976) and 7-19.1 (1976).
B. Change in Conditions
1. Positions of Parties:
Hoover asserts the application should be granted since changes in the conditions have occurred
since the prior denial in 1991. DOR asserts the same factors that existed in 1991 have continued
unchanged, requiring that DOR not process the application.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. In December of 1991, the former ABC Commission denied Hunnicutt's on-premises beer and
wine permit and mini-bottle license for the location of 1722 Broad River Road, Columbia, South
Carolina.
2. The 1991 order found the Hunnicutt proposed location was 297 feet from Westminster
Presbyterian Church.
3. The 1991 order denied the mini-bottle license since the ABC Commission held it had no
jurisdiction to grant a license to a location with 500 feet of a church.
4. The 1991 order further found that if the Commission had jurisdiction over the mini-bottle issue,
based upon the proposed location's proximity to Westminster Presbyterian Church and proximity
to residential areas, the license was properly denied.
5. The 1991 order also found the beer and wine permit was properly denied due to the proposed
location's proximity to Westminster Presbyterian Church and proximity to residential areas.
6. At the Hunnicutt ABC hearing, a map depicting the immediate area was before the ABC.
7. In the Hoover application, DOR had before it a map depicting the immediate area.
8. No material changes in the physical layout of the immediate area have occurred from the time
of the Hunnicutt application until the time of the Hoover application.
9. Hunnicutt's former proposed location is essentially the same distance from Westminister
Presbyterian Church as is the current Hoover proposed location.
10. Hunnicutt's former proposed location is essentially the same distance from the residential area
as is the Hoover proposed location.
11. The location under review in the Hunnicutt application is the same location that is under
review in the Hoover application.
12. There are no material changes with respect to the location sufficient to warrant DOR
processing the application of Hoover.
3. Discussion
The ABC Commission determined in 1991 that the location here under review was improper for a
both a beer and wine permit and a mini-bottle license. Under S.C. Code Regs. 7-96 and 7-19.1,
DOR is not required to process the application until the applicant demonstrates material changes
have occurred at the previously denied location. As to the mini-bottle license, the factors relied
upon by the 1991 ABC Commission were that 1) the license was required to be denied due to the
proposed location being within 500 feet of a church and 2) if not forbidden under the 500 foot
rule, the location was also improper due to the proximity to a church and proximity to residential
areas. As to the beer and wine permit, the ABC Commission denied the application based upon
the proximity to a church and proximity to residential areas. These factors must be examined to
determine if any changes have occurred and, if not, have any other relevant factors changed to
such a degree as to warrant a reexamination of the location issue.
a. Material Changes in Prior Considerations
In deciding whether a material change has occurred, the applicant must identify the changes and
then demonstrate the changes are material. Here, the applicant suggested four changes have
occurred since 1991. First, the distance to the church in 1991 was 297 feet but is now allegedly
628 feet. Second, the proposed location will utilize the former back door as its front door. Third,
parking for the proposed location will be in the former back parking lot. Fourth, the physical
layout of the proposed location is smaller. Of these four changes, I do not find any are material
changes relevant to the mini-bottle license or to the beer and wine permit.
i. Parking and Smaller Size
The former ABC Commission did not rely upon a lack of parking in denying the permit and
license. In fact, the ABC order implies that the Hunnicutt location had adequate parking since the
order holds that 75 spaces are available in front and 125 spaces in the back. Thus, the fact that
Hoover indicates that additional parking is available is not a material change from 1991.
Likewise, while the Hunnicutt application sought a permit and license for a larger facility than that
sought by Hoover, nothing in the Hunnicutt ABC order indicates that size was a consideration in
the decision to deny Hunnicutt's permit and license. Accordingly, showing that Hoover's facility
will be smaller does not demonstrate a change that is material for purposes of S.C. Code Regs.
7-96 or 7-19.1.
ii. Distance To Church and Entrance To Proposed Location
While there is some underlying concern in the former ABC decision that no license could be
issued due to the 500 foot rule, the ultimate holding of the former decision was that no license and
no permit could be issued due to the proximity of the proposed location to a church and
residential area. Based upon such a holding, a determination of whether material changes have
occurred in the proximity issue since 1991 must be addressed.
In the proximity issue the obvious facts are that the church has not moved. The residential area
behind the location has not moved. The proposed location itself has not moved. The only change
is that the proposed location will now have patrons enter from the former back door of the
facility. Because of this single change, the distance to the church for purposes of computing the
500 foot rule is now 628 feet. While precise measurements may have changed, there is no
persuasive evidence that the location is in any less of a proximity to the church and residential
area than in 1991. In fact, if measurement alone is considered, the proposed location is now even
closer to the precise residential area that formed a portion of the basis for denying the application
in 1991.
In short, Hoover has not demonstrated how any material change has occurred to alter the
proximity to the church and residential area. While a literal measurement may have changed, the
issue of proper location cannot be relegated to a simple measurement-precise determination.
Rather, the hearing body in the permitting process should consider any and all factors which
demonstrate the impact a location will have on the community. See Palmer v. S.C. ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). The same broad based analysis is
required not only for beer and wine permits but also for liquor licenses as well. Schudel v. S.C.
ABC Comm'n, 276 S.C. 138, 276 S.E.2d 309 (1981). Only in the limited circumstance of
deciding whether an absolute prohibition requires denying a license is there a requirement to
scrupulously adhere to precise physical measurements. See S.C. Code Ann. § 61-3-440 (Supp.
1995)(no license allowed if place of business is within a proscribed distance to a church, school,
or playground.) Thus, even if the new measurement shows a distance of 628 feet to the church,
such a "change" is not a material change when considered as a part of the broad based analysis of
considering any and all factors which demonstrate the impact a location will have on the
community. Since Hoover has failed to show a material change, DOR is not required to process
the application.
b. Other Considerations
The applicant may seek to have the application processed by DOR where the applicant can show
"some material change with respect to the location," even if the change is to factors not relied
upon in the prior hearing. S.C. Code Regs. 7-96 and 7-19.1. For example, if an applicant could
show the area has changed from decidedly rural to highly commercial or there has been the
addition of other beer and wine permits in the community, such factors may be sufficient to
warrant reexamining the location even though the lack of commercial development and the lack of
other beer and wine permits were not identified reasons for the prior denial. The need to consider
other factors is premised on the fact that the hearing body in the permitting process should
consider any and all factors which demonstrate the impact a location will have on the community.
See Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Only by
weighing competing factors can a decision be reached. While a previous denial may have weighed
specified factors against the applicant, "a material change" in other factors may require a
reweighing of all factors at a subsequent date. The linchpin of the analysis is the duty of the
applicant to prove the material changes.
In the instant case, no persuasive evidence of material changes in other factors has been presented
sufficient to warrant a reexamination of the location issue. Accordingly, DOR is not required to
process the application of Hoover.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of
law:
1. DOR shall not process an application for an on-premises beer and wine permit where a
previous application has been denied as an improper location by the ABC Commission unless
some material change with respect to the location has occurred. 23 S.C. Code Regs. 7-96 (1976).
2. DOR shall not process an application for a mini-bottle license where a previous application has
been denied as an improper location by the ABC Commission unless some material change with
respect to the location has occurred. 23 S.C. Code Regs. 7-19.1 (1976).
3. A material change with respect to a location is any change of a meaningful nature to any factor
that is relevant to the decision of whether the location for a beer and wine permit or a mini-bottle
license is a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995) and Schudel v. S.C.
ABC Comm'n, 276 S.C. 138, 276 S.E.2d 309 (1981).
4. The hearing body in the permitting process should consider any and all factors which
demonstrate the impact a location will have on the community. See Palmer v. S.C. ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).
5. There are no material changes with respect to the proposed location's proximity to a church or
to residential areas.
6. There are no material changes with respect to the proposed location as to any factors
warranting DOR to process Hoover's application.
IV. ORDER
DOR is ordered not to process the application filed by Hoover for an on-premises beer and wine
permit and mini-bottle license at 1722 Broad River Road, Columbia, South Carolina.
IT IS SO ORDERED.
____________________________
RAY N. STEVENS
Administrative Law Judge
This 20th day of February, 1997. |
