SC Administrative Law Court Decisions

The Petitioner, Rosalie E. Garland, (Garland) d/b/a Harlem Grill, of Turbeville, 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 1, Box 144, Given Road, Turbeville, South Carolina. Rev. Richard Bellamy filed a protest seeking to prevent DOR from granting the permit. 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 relevant factors require granting the permit.

Does Garland meet the statutory requirements for a beer and wine permit?

III. Analysis

1. Positions of Parties:

Garland asserts she meets the statutory 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 protestant asserts 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 November 18, 1996, Garland 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#111895.

3. The proposed business location and the place where the beer and wine permit will be utilized is Route 1, Box 144, Given Road, Turbeville, South Carolina.

4. A protest to the application was filed by Richard Bellamy.

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

6. The hearing was held March 31, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

7. No protestant appeared at the hearing.

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. Garland is of good moral character.

c. Legal Resident and Principal Place of Abode

12. Garland holds a valid South Carolina driver's license.

13. Garland currently resides at Route 2, Box 144 Given Road, Turbeville, South Carolina, and has resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

14. Garland 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

15. Garland has never had a beer and wine permit revoked.

e. Age

16. The date of birth of Garland is January 21, 1948.

17. Garland is over twenty-one years of age.

f. Proposed Location

18. The prior owner of the existing location operated with an on-premises beer and wine permit for over 20 years.

19. Garland will continue the same business as the prior owner.

20. While the former owner was charged with unlawful possession of liquor in 1987 and 1988, no other reported criminal activity has occurred at the proposed location during the recent past.

21. St. Paul FBH Church is 475 feet from the proposed location.

22. No evidence demonstrates the proposed location interferes with church activities in the area.

23. The proposed location is not within an improper proximity to churches in the area.

24. Beer and wine is sold under an on-premises permit by a similar business .5 of a mile from the proposed location.

25. No school is in proximity to the applicant's location.

26. The location is adequately served by the traffic route of Given Road.

27. The proposed location is not within an improper proximity to residences in the area.

28. The area is predominately rural.

g. Notice

29. Notice of the Garland 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.

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

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

32. Garland 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. The only matter disputed is whether the proposed location is proper.

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. 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).

An important factor is whether the location has in the recent past been permitted and whether the location is now more or less suitable than it was in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, prior owners at the proposed location operated with on-premises beer and wine permits for over twenty years. While a former owner was charged with unlawful possession of liquor in 1987 and 1988, no other reported criminal activity has occurred at the proposed location during the recent past. Further, no evidence suggests the current applicant will attempt to unlawfully possess liquor. Since the applicant will lawfully continue the prior business, such a factor strongly supports granting the permit.

Likewise, it is relevant whether there are already similar existing businesses in the area. Ibid. Here, a similar business operates with an on-premises beer and wine permit approximately .5 of a mile from the proposed location. Further, traffic can be a concern. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, the traffic patterns will not adversely impact the area since Givens Road provides an adequate route for safety concerns. Finally, proximity of a location to a church may be a factor in examining a permit request. 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). Here, no evidence establishes that the prior operation of the business presented problems for church activities. Thus, the current applicant is likely to pose no problem.

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 more than thirty (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 churches is a relevant factor in reviewing a permit application. 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).

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. Traffic patterns in the area are relevant to a beer and wine permit. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann. § 61-9-320(6) (Supp. 1995).

9. 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).

10. The applicant meets the requirements for the issuance of a beer and wine permit.

DOR is ordered to grant to Rosalie E. Garland, d/b/a Harlem Grill an on-premises beer and wine permit at Route 1, Box 144, Given Road, Turbeville, South Carolina.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 4th day of April, 1997

Columbia, South Carolina