South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Alfred McCoy, d/b/a Club 76 vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Alfred McCoy, d/b/a Club 76

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
96-ALJ-17-0524-CC

APPEARANCES:
Nathaniel Roberson, Esq., for Petitioner

Arlene D. Hand, Esq., for Respondent, Excused from Appearance

Cheryl Phillips and Troy Phillips, Protestant

W. D. Morris, Esq., Protestant

Barbara Lovett, Protestant

Wilmot B. Irvin, Esq., Protestant
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Alfred McCoy (McCoy) of Eastover, South Carolina filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine permit for 144 Robert McKenzie Rd., Eastover, South Carolina. Several concerned community property owners filed protests seeking to prevent DOR from granting the license. To decide the matter, 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 denying the permit.

II. Issue


Does McCoy meet the requirements for an on-premises beer and wine permit?

III. Analysis

1. Positions of Parties:

McCoy asserts he meets all 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 August 20, 1996, McCoy 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 110458.

3. The proposed business location and the place where the beer and wine permit will be utilized is 144 Robert McKenzie Road, Eastover, South Carolina.

4. The business will operate as a club providing a game room of video poker and a bar.

5. Protests to the application were filed by property owners in the area.

6. Except for the unresolved suitability-of-location issue, DOR would have issued the permit.

7. The hearing was held February 20, 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. McCoy has resided in South Carolina since 1955.

13. McCoy holds a valid South Carolina driver's license.

14. McCoy currently resides at 126 Pondarch Rd., South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

15. McCoy 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. McCoy has previously held a beer and wine permit.

17. McCoy has never had a beer and wine permit revoked.

e. Age

18. McCoy's date of birth is December 17, 1936.

19. McCoy is over twenty-one years of age.

f. Proposed Location

20. The proposed location is in a predominately residential area.

21. The residents in the neighborhood have differing views on the impact of the proximity of the proposed location to residential living.

22. Some residents view the proposed location's proximity as likely to create no problem.

23. Other residents view the proximity to residences as creating a significant detriment to residential living.

24. The area is rural.

25. A single commercial business operates immediately across the street from the proposed location.

26. The proposed location's proximity to the residential area is not conducive to residential living in the primarily residential area of Robert McKenzie Road.

27. The road in front of the proposed location is a single lane, unpaved, dead-end road used by residents of the neighborhood.

28. Two cars meeting on the road traveling in opposite directions must move to one side to allow safe passage.

29. No other roads provide access to the location.

30. The location is not adequately served by traffic routes in that Robert McKenzie Road is a single lane, unpaved, dead-end road.

31. The existing Robert McKenzie Road pattern will create traffic dangers if the permit is granted.

32. Road access by a single route, which route is narrow and unpaved, is not conducive to providing an on-premises beer and wine permit.

33. No similar on-premise beer and wine permits operate in the Robert McKenzie Road area.

34. The proposed location will conduct a video poker game room with hours of operation until midnight on several nights.

35. The operation of a late night enterprise is not conducive to a residential area such as that along Robert McKenzie Road.

36. No schools are in proximity to the applicant's location.

37. McCoy is a proper and fit applicant but the site chosen is not a proper location.

38. The proposed location is proximate to residences in the area.

g. Notice

39. Notice of the McCoy application was published in The State, a newspaper published and distributed in Richland County, with notice published on August 22 and 26 and September 2, 1996.

40. Notice of the McCoy application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to interested citizens of Eastover.

41. McCoy gave notice to the public by displaying a sign for fifteen days at the proposed business.

42. McCoy gave notice of the application by the required advertising by newspaper and display of signs.

3. Discussion

a. General

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.

b. Basis For Decision

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. Numerous factors are important to such a determination.

Certainly, many locations have competing factors that must be weighed to determine the propriety of the location. For example, on one hand, the proposed location is in a predominately residential area. That factor alone weighs heavily in favor of denying the application. See William Byers v. S.C. ABC Comm'n., 305 S.C. 243, 407 S.E.2d 653 (1991) (holding the single factor of proximity to residences a sufficient basis by itself to deny a permit request.). Here, however, the residents in the neighborhood have differing views on the proximity issue. Some residents testified the proposed locations's proximity was no problem at all while other residents stated the proximity will create a significant detriment to residential living. Additionally, the area is rural, and the rural nature of a location in some instances can weigh against an application. See Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (rural nature of an area a factor for denial of a permit request.). Here, however, a commercial business is operating immediately across the street. The presence of a close-by commercial business may tend to support the adequacy of a proposed location. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973) (holding that an area which is somewhat commercial is a factor in granting a permit.).

In the final analysis, however, the fact-finder must resolve the location dispute by deciding the extent to which the evidence reveals unacceptable adverse circumstances surrounding the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). In making such a determination, the fact-finder may examine any factors that demonstrate the detrimental effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, supra. Geography alone is not the sole criteria but rather specific consideration may be given to the nature and operation of the proposed business. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

Certainly, Mr. McCoy is a proper and fit applicant; the site he has chosen, however, is not a proper location. While the area residents may disagree on the impact of the proposed location, the area is clearly residential and predominantly rural. These two characteristics create a strong inference that the location is improper. To overcome such a position, the applicant must demonstrate how other factors establish the location is proper.

Here, the applicant has failed to prove sufficient factors to establish the location is proper. For example, the evidence establishes the road in front of the proposed location is a single lane, unpaved, dead-end road used by residents of the neighborhood. The evidence establishes that at best two cars meeting on the road traveling in opposite directions must move to one side to allow safe passage. No other roads provide access to the location. Road access by a single route which route is narrow and unpaved is not conducive to providing an on-premises beer and wine permit. Road patterns creating traffic dangers support a denial of a location as improper. Palmer v. S.C. ABC Comm'n, supra.

Additionally, there are no similar on-premise businesses in the community. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973) (stating that the existence of similar close-by businesses selling beer and wine is a factor in granting a permit.). Here, the proposed location would be the first on-premises permit on Robert McKenzie Road.

Finally, the nature of the business to be conducted is a consideration. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Here, the business will conduct a video poker game room with hours of operation until midnight on several nights. The operation of a late night enterprise is not conducive to a residential area such as that along Robert McKenzie Road. Based upon all the above, the location is not proper for an on-premises beer and wine permit.

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. Proximity to a residential area is a sufficient factor by itself to deny an application for a beer and wine permit. See William Byers v. S.C. ABC Comm'n., 305 S.C. 243, 407 S.E.2d 653 (1991)

6. The rural nature of an area may lead to denial of a permit request. See Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984)

7. An area which is somewhat commercial is a factor in granting a permit. See Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

8. The fact-finder must resolve the location dispute by deciding the extent to which the evidence reveals unacceptable adverse circumstances surrounding the location. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972).

9. The fact-finder may examine any factors that demonstrate the detrimental effect the proposed location will have on the community. Palmer v. S.C. ABC Comm'n, supra.

10. Geography alone is not the sole criteria but rather specific consideration may be given to the nature and operation of the proposed business. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

11. Road patterns creating traffic dangers support a denial of a location as improper. Palmer v. S.C. ABC Comm'n, supra.

12. The location is not a proper location for an on-premises beer and wine permit due to the location's proximity to residences, general rural nature of the area, lack of adequate traffic routes, and late night operating hours incompatible with a residential area.

13. Considering all relevant factors, the proposed location is not 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. 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 McCoy's application for an on-premises beer and wine permit at 144 Robert McKenzie Road, Eastover, South Carolina.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 3rd day of March, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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