ORDERS:
ORDER DENYING MOTION FOR RECONSIDERATION
I. Introduction
This matter is before the Administrative Law Judge Division (ALJD) pursuant to the motion of the
Petitioner, Walter R. Hoover, W. R. H., Inc., d/b/a Hoover's (Hoover) for reconsideration of the final
order in this case dated February 20, 1997. As to the beer and wine permit, the Motion For
Reconsideration asserts the February 20, 1997, order erred by failing to find "some material change"
has occurred at the proposed location since the 1991 denial by the ABC Commission (ABC). As to
the mini-bottle license, the Motion asserts error resulted from reliance upon the ABC order's analysis
of the location's proximity to a church and residences. Such reliance, Hoover asserts, is misplaced
since the Commission's order admits the Commission "had no jurisdiction to grant the license"
thereby rendering the proximity analysis only dictum. Finally, the Motion asserts due process requires
that the mini-bottle application must be processed by DOR. I find no persuasive reason to alter the
original order and thus deny the Motion.
II. Beer and Wine Permit
Hoover asserts he proved the required material change has occurred at the proposed location since
he will transform the former front door of the denied location into the back door of his proposed
location. Conversely, and somewhat obviously, Hoover's plan will convert the former back door into
the front door of his proposed location. Hoover argues his door switching plan is a material change
since it removes the church from the sight and sound of the location.
I am unable to agree with Hoover's argument. Hoover's Motion predominantly addresses the church
proximity concern. An overriding factor, however, renders the church proximity dispute irrelevant.
The Motion presents no persuasive argument identifying any change in the factor of proximity to the
residential area. Such a lack of change in that factor necessarily renders all other alleged changes,
including the church proximity factor, immaterial. William Byers v. S.C. ABC Comm'n, 305 S.C.
243, 407 S.E.2d 653, 655 (1991). Second, even if changes in the proximity to the church were
examined, the door switching plan not only does not result in a material change but also does not
result in any change in the proximity to the church.
A. Proximity To Residences
Case law establishes that the single finding that a location is proximate to a residence is by itself a
proper ground for denial of a permit. See 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). The ABC
order held the prior location was in proximity to a residential area known as Riverside Park. Hoover's
Motion presents no persuasive argument identifying any change in the factor of proximity to the
residential area. In fact, if Hoover's door switching argument is applied, the orientation of the
entrance will move the location closer to the same residential area, Riverside Park, that supported the
denial of the location in the first instance. Hoover has the burden of proving the required change. See
23 S.C. Code Regs. 7-96 (1976) (application will not be processed unless applicant shows some
material change with respect to the location.) A party who fails to carry their burden of proof cannot
prevail in their action. Sanders, Neese, and Nichols, South Carolina Trial Handbook, § 9:1 Burden
of Proof (1994). A lack of proof of a change in the residential proximity status necessarily renders
all other alleged changes, including the church proximity, immaterial. See William Byers v. S.C. ABC
Comm'n, 305 S.C. 243, 407 S.E.2d 653, 655 (1991) (explaining that under § 61-9-320 [applicable
to Hoover due to his pre-1997 application], once a location is found to be in proximity to a
proscribed class such as a residential area, any other "factors are not ... material ..."). In other words,
once a forbidden proximity is found (i.e. the residential proximity as found by the ABC order) and
the applicant fails to prove a change in that specific proximity factor (which is the case here), any
other alleged changes are by definition immaterial (see William Byers, supra.) since the forbidden
proximity factor alone serves to deny the location's suitability (see Moore, supra.). Accordingly,
Hoover has failed to prove the required material change at the location since he has not proven some
material change in the forbidden residential proximity.
B. Proximity To Church
Even absent Hoover's failure of proof in the residential proximity issue, additionally, Hoover has not
established a material change in the church proximity finding of the ABC order. Hoover argues a
change at the location results from the door switching plan since that plan will remove the location
from the sight and sound of the church. Motion at unnumbered page 3. I disagree. No change in the
proximity occurs by such a plan and, even if a change could be found, the articulated change is not
material.
1. No Change In Proximity To Church
Proximity is not defined either by statute or regulation. Proximity, however, has the common
meaning of a closeness in space, time or order. The American Heritage College Dictionary 1055
(3rd ed. 1993). Thus, the inquiry is whether a change occurred in the closeness of the location to the
church in either space, time or order.
Here, while the measurement from the location's new "front door" to the church has changed, the
location today has the same distance to the church as it had at the time of denial in 1991. The obvious
cannot be dismissed. The church has not moved; the proposed location has not moved. Rather, the
only "change" is the redesignating of an entrance and an exit. The alteration of exits and entrances
is simply not a change in the proximity factor.
2. Lack of a Material Change
Hoover argues that the door switching plan is a change in the proximity to the church and that the
change is material since it enhances the church's right to the peaceful operation of their facilities by
eliminating the sight and sound of the proposed location. While I do not believe a change has
occurred, even if a change could be found, such a change is not a material change.
a. Extent of Change Needed
Hoover has the burden of demonstrating a material change. "Material" means important. Black's
Law Dictionary 976 (6th ed. 1990). Rather than a fixed level of importance, the word "material"
conveys a range of importance from the minimum standard of relevant to the middle standard of
substantial to the highest standard of essential. Webster's Third New International Dictionary 1392
(1993). Since "material" can suggest varying degrees of importance, some interpretation is needed
to discern the intent in using the word "material" in the regulation. See Southeastern Fire Ins. Co.
v. S.C. Tax Comm'n, 253 S.C. 407, 171 S.E.2d 355 (1969) (if the terms of a provision are
susceptible of more than one interpretation, construction must be employed to discern the intent of
the legislature.) The proper interpretation is the one that best carries out the purpose of the
provision. Green v. Thornton, 265 S.C. 436, 219 S.E.2d 827 (1975). In searching for the correct
interpretation, the language used must be construed in the light of the intended purpose. Singletary
v. South Carolina Dept. of Educ., 316 S.C. 153, 447 S.E.2d 231 (Ct. App. 1994).
The intended purpose of S.C. Code Regs. 7-96 is to prevent the relitigation of previously decided
location issues. Consistent with that intent, the degree of importance assigned to the change (i.e. the
materiality) should not set a threshold that will encourage the continued review of previously denied
locations. For example, assume a previous location is improper due to its proximity to a church.
Further, assume the previous applicant applied when the building was painted bright blue. Could a
second applicant for the same location meet its burden of material change by painting the building a
less noticeable color of beige? While certainly the change in color may be relevant and may factually
show the building is less noticeable and therefore alter the "sight" from the church, can such a change
meet the burden of a material change? I think not. To hold otherwise frustrates the intent of the
regulation by encouraging relitigation of decided issues. Accordingly, the middle standard of
"substantial" is the proper degree of importance to establish a change as material. Thus, a change
which is only relevant is not a material change.
b. Weighing of Evidence Purporting To Show A Material Change
Since a material change does not result unless the change is one of substantial importance, the fact-finder must weigh the evidence in order to decide whether under the totality of the circumstances the
alleged changes are truly of substantial importance. In making this weighing decision, the original ALJ
order of February 20, 1997, looked at the purported changes in the light of a "broad based analysis
of considering any and all factors which demonstrate the impact a location will have on the
community." ALJ Order, p. 6. Hoover asserts that such a standard is not applied in a "material
change" case but rather such a standard is applied only at the merits hearing stage.
Again, I must disagree. Hoover's view is a fundamental misunderstanding of the review process in
a material change dispute. The purported changes cannot be viewed in isolation. Rather, the
changes must be evaluated in light of the total circumstances existing at the location. Only then can
a decision be made on whether the changes are material. In other words, were the changes of
substantial importance (i.e. material) when considered in conjunction with the numerous other
location considerations the ABC order would have been allowed to consider? For purposes of
example only, the door switching plan is not likely to be of substantial importance if the former
decision found the location to be a site of illegal drug traffic, a high rate of criminal acts against
persons and property, and inadequate traffic access. Under those facts, moving of doors is simply not
material to the location issue given the other more significant location concerns. Thus, Hoover's view
of the analysis required in a material change dispute is incorrect and forms no basis requiring a
reconsideration of the original ALJ order.
III. Mini-Bottle License
The Motion asserts the ALJ order incorrectly relies upon the ABC's analysis of the location's
proximity to a church and residences since the ABC order admits the Commission "had no jurisdiction
to grant the license." Hoover argues such a statement renders the proximity analysis only dictum.
Additionally, Hoover argues that due process requires DOR to process the mini-bottle application.
A. Jurisdiction
The ABC order at pages 8 and 9 states that § 61-3-440 holds "the Commission has no authority to
grant a license outside city limits if the location is within 500 feet of a school, church, or playground.
The Commission, therefore, has no jurisdiction to grant this license." Hoover argues the ALJ order
erred by not finding such language means the ABC Commission lacked subject matter jurisdiction and
thereby prevented ABC from examining the merits of the matter. See Motion for Reconsideration,
unnumbered page 5. I disagree.
Jurisdiction over the subject matter of an action is a more narrow aspect of the broader concept of
jurisdiction. 21 C.J.S. Courts § 10 (1990). In its broadest context, jurisdiction exists when the
adjudicator has authority to decide the class of case involved, the proper parties are present, and the
point to be decided is within the authority of the court to grant. United Cemeteries Co. v. Strother,
342 Mo. 1155, 119 S.W.2d 762, 765 (1938).
In the instant matter, the ABC order did not lack or express a lack of subject matter jurisdiction. See
§ 61-5-50 (ABC Commission shall grant mini-bottle licenses under appropriate circumstances.); § 61-5-90 (if mini-bottle license denied, ABC Commission shall grant a hearing to decide the dispute.)
Rather than subject matter jurisdiction, the ABC order, when taken in context, uses the word
"jurisdiction" in the sense of a lack of a basis to grant the license because of the facts established.
Such is made clear by the order's reference to § 61-9-440. That statute prohibits a license within 500
feet of a church. Since the order found a church was only 297 feet from the location, the ABC order
held the license was denied. Thus, the ABC order did not conclude the ABC Commission lacked
subject matter jurisdiction.
Further, in the event the first ground for denial was found legally or factually incorrect, as a second
basis for denial, the ABC order held the location was unsuitable due to its proximity to a church and
a residential area. Such a ground is a valid basis for denying a mini-bottle license. Schudel v. S.C.
ABC Comm'n., 276 S.C. 138, 276 S.E.2d 309 (1981). An adjudicator is free to establish alternative
grounds for its decision so that if one fails the second will form a valid basis for deciding the case. See
Weeks v. McMillan, 291 S.C. 287, 353 S.E.2d 289 (Ct.App.1987) (a decision based on alternative
grounds, either of which independent of the other is sufficient to support the decision, will not be
reversed even if one ground is erroneous). Accordingly, the ABC order properly addressed the merits
of the mini-bottle license and properly examined the proximity to the church and residential area.
B. Due Process
Hoover argues that due process requires a review of his mini-bottle application. This issue was not
raised at the hearing on the merits and is now being asserted for the first time. A party cannot use
a motion to reconsider to present an issue he could have raised prior to decision but did not.
Anderson Memorial Hosp., Inc. v. Hagen, 313 S.C. 497, 443 S.E.2d 399 (Ct. App. 1994).
Accordingly, Hoover's argument forms no basis for a reconsideration.
Based upon all of the above, the Motion For Reconsideration is denied.
IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
This 10th day of March, 1997
Columbia, South Carolina |