ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Betty L. Daugherty (Daugherty) of Manning, South Carolina filed with the South
Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and
wine permit for Route 4, Box 1168, Manning, South Carolina. Jimmy J. Eldreth, Pastor, filed a
protest on behalf of Santee Baptist Church 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). After a hearing on February 24, 1997, the established evidence requires the denial of
the permit.
II. Issue
Does Daugherty meet the requirements for an on-premises beer and wine permit?
III. Analysis
1. Positions of Parties:
Daugherty asserts she meets the statutory requirements. DOR would have granted the permit but for
the protest to the location. The protestant asserts 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 October 23, 1996, Daugherty 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 111467.
3. The proposed business location and the place where the beer and wine permit will be utilized
is Route 4, Box 1168, Manning, South Carolina.
4. The business is a convenience store operating with a menu of short order food items.
5. A protest to the application was filed by Jimmy J. Eldreth, Pastor, on behalf of Santee Baptist
Church.
6. Except for the unresolved suitability of location issue, DOR would have issued the permit.
7. The hearing was held February 24, 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. Daugherty has resided in South Carolina since July 1962.
13. Daugherty holds a valid South Carolina driver's license.
14. Daugherty currently resides at Route 4, Box 1165, Manning, South Carolina, and resided in
South Carolina for more than 30 days prior to filing the application for a beer and wine
permit.
15. Daugherty 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. Daugherty has never had a beer and wine permit revoked.
e. Age
17. Daugherty's date of birth is August 19, 1945.
18. Daugherty is over twenty-one years of age.
f. Proposed Location
19. Santee Baptist Church is 600 feet from the proposed location.
20. The church utilizes the rear portion of its property for children's and youth recreation.
21. The proposed location is proximate to Santee Baptist Church.
22. The immediate vicinity of the proposed location lacks significant commercial development.
23. Several on-premises and off-premises beer and wine permits operate within a half mile radius
of the proposed location.
24. The proposed location has no interior seating for its patrons.
25. All seating is 100 feet from the building and consists of four picnic tables providing space for
24 customers.
26. The physical structure of the facility provides no line of sight from the interior of the building
to the exterior picnic area.
27. The area has a high concentration of teenagers particularly during the spring and summer
seasons.
28. The lack of a line-of-sight inhibits the ability to supervise and control the consumption of beer
and wine on the property.
29. Any impediment to a lack of supervision is of particular concern under the current
management of the proposed location since within the last year the current management,
while operating under an off-premises permit, sold beer to an underaged party.
30. The sale to an underage party resulted in a criminal conviction for the employee making the
sale and the payment of a $400 civil fine by Daugherty.
31. Given the prior performance of the applicant, a physical layout inhibiting supervision of
facilities 100 feet away from the proposed location's building increases the opportunity for
underage drinking.
32. Granting a permit under these conditions will adversely impact the community.
33. The location is adequately served by the traffic route of S.C. Hwy. 260.
34. The proximity to residences consists of Daugherty's residence which is next to the proposed
location, a mobile home at 250 feet, a residence at 380 feet, and four residences across the
street.
35. The area is predominately rural.
g. Notice
36. Notice of the Daugherty application was published in the Manning Times, a newspaper
published and distributed in Clarendon County, with notice published on October 24, 31 and
November 7, 1996.
37. Notice of the Daugherty application appeared at least once a week for three consecutive
weeks in a newspaper most likely to give notice to interested citizens of Manning.
38. Daugherty gave notice to the public by displaying a sign for fifteen days at the proposed
business.
39. Daugherty 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.
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. Under the facts here, I conclude the on-premises permit must
be denied. I am aware that several on-premises and off-premises beer and wine permits operate
within a half mile radius of the proposed location and that the presence of these similar existing
businesses is a relevant factor weighing in favor of granting the permit. Taylor v. Lewis, 261 S.C.
168, 198 S.E.2d 801 (1973). However, I find several offsetting factors require denying the permit
under the current conditions of the application.
First, a location's proximity to a church can be a proper ground by itself to deny a permit. 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. 160, 417 S.E.2d 555 (1992). Here, Santee Baptist Church is 600 feet from the proposed
location with the church utilizing the rear portion of its property for children's and youth recreation.
Second, a relevant concern is whether the character of the entire area is rural versus commercial.
Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, the
immediate vicinity of the proposed location lacks significant commercial development.
While the proximity to Santee Baptist Church and the lack of commercial development weigh against
granting the permit, a major consideration in denying the permit is finding the proposed location will
have an adverse effect on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984). In making this determination, geography alone is not the sole suitability
consideration. Rather, any impact the proposed location will have on the community must be
considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
Here, the proposed location has no interior seating for its patrons. Rather, all seating is 100 feet
from the building and consists of four picnic tables providing space for 24 customers. The physical
structure of the facility provides no line of sight from the building to the exterior picnic area. Further,
the applicant admitted the area has a high concentration of teenagers particularly during the spring
and summer seasons. The lack of a line-of-sight inhibits the ability to supervise and control the
consumption of beer and wine on the outskirts of the property. This impediment to a lack of
supervision is of particular concern here. The current management, while operating under an off-premises permit, has within the last year sold beer to an underaged party. That sale resulted in a
criminal conviction for the employee making the sale and a $400 civil fine for Daugherty. Given the
prior historical performance of the applicant, a physical layout which inhibits supervision for facilities
100 feet away will increase the opportunity for underage drinking. Granting a permit under these
conditions will adversely impact the community. Under the conditions now in existence and based
on a consideration of all relevant factors, the on-premises permit must be denied.
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 a church can be a proper ground by itself to deny a
permit to a proposed location. William Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407
S.E.2d 653 (1991).
6. 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).
7. A relevant concern is whether the character of the entire area is rural versus commercial.
Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
8. A consideration in reviewing a permit request is whether the proposed location will have an
adverse effect on the community. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d
476 (Ct. App. 1984).
9. In making a determination of adverse effect upon the community, geography alone is not the
sole suitability consideration; rather, any impact the proposed location will have on the
community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
10. Considering all relevant factors, the proposed location is not a proper location. S.C. Code
Ann. § 61-9-320(6) (Supp. 1995).
11. 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).
12. The applicant does not meet the requirements for the issuance of a beer and wine permit
pursuant to S.C. Code Ann. § 61-9-320 (Supp. 1995).
IV. ORDER
DOR is ordered to deny Daugherty's application for an on-premises beer and wine permit at Route
4, Box 1168, Manning, South Carolina.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative Law Judge
This 27th day of February, 1997
Columbia, South Carolina |
