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:
Vera L. Robinson, d/b/a Ford Place vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Vera L. Robinson, d/b/a Ford Place

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
97-ALJ-17-0073-CC

APPEARANCES:
Vera Lee Robinson, Pro se, for Petitioner

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

Luther Gamble, Protestant
 

ORDERS:

ORDER

I. Statement of the Case


The Petitioner, Vera Lee Robinson (Robinson) of Georgetown, 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 636, Georgetown, South Carolina. Luther Gamble 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.

II. Issue


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





III. Analysis

1. Positions of Parties:

Robinson 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 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 October 16, 1996, Robinson 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 # 111383.

3. The proposed business location and the place where the beer and wine permit will be utilized is Route 4, Box 636, Georgetown, South Carolina.

4. The business will operate as a snack bar with seating for approximately twelve.

5. A protest to the application was filed by Luther Gamble of the Browns Ferry Community Service Project.

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

7. 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 protestant.

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. Robinson is of good moral character.

c. Legal Resident and Principal Place of Abode

12. Robinson was born in South Carolina and has resided in South Carolina since her birth.

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

14. Robinson currently resides at 165 Frank Williams Drive, Georgetown, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

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

e. Age

17. Robinson's date of birth is November 19, 1951.

18. Robinson is over twenty-one years of age.

f. Proposed Location

19. The proposed location has operated in the past without incident from December of 1991 to February 1993 with an on-premises beer and wine permit.

20. Robinson will continue the same business as the former operation.

21. The business will operate as a snack bar serving hot dogs, hot wings, soft drinks, french fries and other short order items.

22. No reported criminal activity has occurred at the proposed location during the past several years.

23. The St. Paul A.M.E. Church is one (1) mile from the proposed location.

24. The proposed location is not within a prohibited proximity to a church.

25. Beer and wine is sold under an on-premises permit by the Riverview Club seven tenths of a mile from the proposed location and sold under an off-premises permit by Brown's Store five tenths of a mile from the proposed location.

26. The closest school is Brown's Ferry Elementary School approximately 2.2 miles from the applicant's location.

27. The proposed location is not within a prohibited proximity to a school.

28. The location is adequately served by the traffic routes of Hwy. 51 and Fuzzy Drive.

29. The proximity to residences consists of one residence within 100 feet, three within 100 to 300 feet, four within 300 to 500 feet and sixteen within 500 to 1200 feet.

30. Woods immediately behind the proposed location separate most of the residences from the proposed location.

31. The area is predominately rural.

g. Notice

32. Notice of the Robinson application was published in The Georgetown Times, a newspaper published and distributed in Gerogetown County, with notice published on October 24, 31, and November 7, 1996.

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

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

35. Robinson 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. I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. I find the permit must be granted.

Several factors convince me the location is proper. First, 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, the prior operation from 1991 to 1993 did not create reported disturbances or violations of the law. Since the applicant will continue essentially the same business as the former operation, such a factor strongly supports granting the permit.

Second, it is relevant whether there are already similar existing businesses in the area. Ibid. Here, beer and wine is sold under an on-premises permit by the Riverview Club seven tenths of a mile from the proposed location. Likewise, beer and wine is sold under an off-premises permit at Brown's Store five tenths of a mile from the proposed location. Thus, Robinson's sale of beer and wine will not be inconsistent with the vicinity.

Third, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). Here, while some testimony identified criminal activity at a location approximately a mile from the proposed location, no reported law enforcement has been required at the proposed location. Further, traffic is a relevant matter. 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 the location is adequately served by the traffic routes of Hwy. 51 and Fuzzy Drive.

Finally, proximity of a location to residences 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, the evidence establishes that the prior operation from 1991 to 1993 did not present a problem for residential living. Thus, the current applicant, who will conduct essentially the same business as the former operation, is also likely not to pose a problem. Hence, the permit must be granted.

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 her 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 residences, churches, schools, and playgrounds can be a proper ground by itself to deny a permit to a proposed location. S.C. ABC Comm'n v. William Byers, 305 S.C. 243, 407 S.E.2d 653 (1991).

6. While not controlling, distances to residences or a church or a school from a proposed location are legitimate considerations in the review of a beer and wine permit. Moore v. S.C. ABC Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992); Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

7. 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).

8. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

9. Traffic is a relevant matter. Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

10. Considering all relevant factors, the proposed location is 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 meets the requirements for the issuance of a beer and wine permit.





IV. ORDER


DOR is ordered to grant to Robinson an on-premises beer and wine permit at Route 4, Box 636, Georgetown, South Carolina.

AND IT IS SO ORDERED.

__________________________________

RAY N. STEVENS

Administrative Law Judge

This 14th day of April, 1997

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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