SC Administrative Law Court Decisions

The Petitioner, Betty Medlin, d/b/a Quick Stop (Medlin) of Clinton, South Carolina filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an off-premises beer and wine permit for 2640 Scurry Island Road, Chappells, South Carolina. Several individuals filed protests seeking to prevent DOR from granting the permit. Pursuant to 23 S.C. Code Regs. 7-90 (Supp. 1996), a hearing must be conducted with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 1-23-310 and 600(B) (Supp. 1996). The relevant factors require denial of the permit.

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

III. Analysis

1. Positions of Parties:

Medlin 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 intervenors assert the proposed location is not proper while a protestant from the sheriff's office asserts not only is the location improper but a permit should be denied since an individual with a criminal record may be employed at the location.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

a. General

1. On or about January 19, 1997, Medlin filed an application with the Department of Revenue for an off-premises beer and wine permit.

2. The application is identified by DOR as AI # 112415.

3. The proposed business location and the place where the beer and wine permit will be utilized is 2640 Scurry Island Road, Chappells, South Carolina.

4. A protest to the application was filed by several residents of the area.

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

6. The hearing was held May 19, 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

7. The State Law Enforcement Division (SLED) investigated the applicant's criminal background.

8. The SLED report revealed no criminal violations.

9. The applicant's actions and conduct do not imply the absence of good moral character.

10. Medlin is of good moral character.

c. Legal Resident and Principal Place of Abode

11. Medlin has been a resident of South Carolina since 1942.

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

13. Medlin currently resides in South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

14. Medlin 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. Medlin has never had a beer and wine permit revoked.

e. Age

16. Medlin's date of birth is July 5, 1941.

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

f. Proposed Location

18. The proposed location has never been permitted to sell beer and wine and has never sold beer and wine.

19. The business will operate as a convenience store offering assorted food items as well as bait, tackle, and fishing supplies.

20. The hours of operation will be from 6:00 a.m. until midnight.

21. At least fourteen (14) residences are in the immediate area of the proposed location: four residences within 400 feet, three more within 500 feet, two more within 600 feet, two more within 700 feet, two more within 800 feet, and one more within a 1000 feet.

22. The proposed location is within an improper proximity to residences.

23. Some residents on Scurry Island Road hold occupations (auto mechanic, heating and air conditioning repair, etc.) that could provide an opportunity for conducting business from their residence.

24. Residents along Scurry Island Road do not operate businesses from their residences.

25. No businesses exist along the shoreline of Lake Greenwood in the Scurry Island Road area.

26. Other than Medlin's business, no commercial establishments are in the immediate vicinity.

27. The immediate vicinity is predominately residential and rural and is not commercial.

28. Commercial entities outside of the area consist of Scurry's Store located on Highway 39, 1.9 miles from the proposed location and Horn's, also on Highway 39, at 3.8 miles from the proposed location.

29. Scurry's Store and Horn's each hold beer and wine permits.

30. Outlets for purchasing beer and wine exist at an accessible and reasonable distance from the Scurry Island Road community.

31. Scurry Island Road is the only entrance or exit to the proposed location.

32. Scurry Island Road is a curving and unpaved, gravel-covered road.

33. The building housing the business at the location is approximately thirty (30) feet from Scurry Island Road.

34. Parking for approximately seven to ten vehicles is available in the front of the building.

35. Vehicle access for parking in the rear of the proposed location is currently limited by Medlin's lack of permission to use a driveway jointly owned by two neighboring residents.

36. The closeness of vehicle parking to the roadway, when combined with the terrain and configuration of Scurry Island Road, creates the potential for unsafe access and egress.

37. Three deputies of the Newberry Sheriff's Department patrol the county with one deputy assigned to each of three zones comprising the county.

38. The proposed location is within the 200 square miles of Zone 3.

39. The proposed location is on the far extreme end of Newberry County.

40. The response time of the Sheriff's Department to an emergency on Scurry Island Road is approximately twenty (20) minutes.

41. The police protection for the location is strained since a single deputy is required to respond to a location on the edge of the county.

42. The proposed location is not a proper location for a beer and wine permit.

g. Notice

43. Notice of the Medlin application was published in The Newberry Observer, a newspaper published and distributed in Newberry County, with notice published on December 11, 18, and 25, 1996.

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

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

46. Medlin gave notice of the application by the required advertising by newspaper and display of signs.

3. Discussion

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 matters disputed are whether the proposed location is proper and whether Medlin will employ any individuals with a criminal record. Since the permit is denied on the basis of an improper location, I do not reach the employee issue.

a. General Criteria For Location

Under S.C. Code Ann. § 61-4-520 (6)(Supp. 1996), no beer and wine permit may be granted unless the location is a proper location. In deciding the matter, the fact-finder may consider any impact the granting of the permit will have upon the community. Kearney v. Allen, 287 SC. 234, 338 S.E.2d 335 (1985). A relevant consideration is the presence or lack of similar existing businesses in the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). A more general but related consideration is whether the area is predominately residential and rural versus commercial. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). In fact, the residential nature of an area is a critical concern since the sole determination that a proposed location is within an improper proximity to residences is a sufficient basis by itself to deny a beer and wine permit. William Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). The degree of difficulty created by traffic is a valid concern. Palmer, supra. Finally, for this case, law enforcement is a consideration since evidence of a strain upon police protection is pertinent in deciding whether to grant a beer and wine permit. Moore v. S.C. Alcoholic Beverage Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

b. Basis For Decision On Location

I have considered all relevant factors in my deliberations and have given due weight to the evidence presented at the hearing. Here, the area is characterized as a rural, residential, and generally non-commercial community. At least fourteen (14) residences are in the immediate area with distances to the proposed location ranging from approximately 400 feet to 1000 feet. The number of residents and the closeness to the proposed location places Medlin's business within an improper proximity to residences in the area. See William Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

In addition, while some residents on Scurry Island Road hold occupations in such areas as auto repair and heating and air conditioning repair accompanied by an opportunity for conducting business from their residence, no such residential businesses are conducted. The lack of commercial activity extends not only to Scurry Island Road but, at least for the immediate vicinity, also along the shoreline of Lake Greenwood. Other than Medlin's business, no other commercial activity occurs in the community. Thus, the area's absence of a commercial nature weighs against granting the permit. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

Further, the issuance of the requested permit would be the first introduction of beer and wine in the community since no beer and wine permits are operational in the immediate vicinity. Additionally, in the past, the proposed location has never sold beer and wine. Thus, the character of the neighborhood will be changed by the introduction of beer and wine and that factor weighs against granting the permit. See Kearney v. Allen, 287 SC. 234, 338 S.E.2d 335 (1985).

Here, I note the fact that the lack of a beer and wine permit in the immediate vicinity does not create an area for which no outlets for purchasing beer and wine exist. Commercial entities just outside the area are a reasonable distance away and are in a more commercial setting. For example, Scurry's Store located on Highway 39, 1.9 miles from the proposed location and Horn's, also on Highway 39, at 3.8 miles from the proposed location, both hold beer and wine permits.

Legitimate concerns also exist as to vehicle accessibility and parking at the location. Scurry Island Road, a curving, unpaved, and gravel-covered route, is the only entrance and exit to the proposed location. Such an access is not conducive to the increased traffic likely to be generated by the presence of beer and wine sales. Further, the location's building is approximately thirty (30) feet from Scurry Island Road and provides parking in the front of the building for seven to ten vehicles. While that number of spaces is likely to be adequate, the closeness to the roadway and the fact that the business will not close until midnight creates the potential for unsafe conditions. Elimination of parking close to the roadway cannot be easily avoided since parking in the rear of the proposed location is limited by Medlin's lack of permission to use a drive way jointly owned by two neighboring residents. Accordingly, parking will have an adverse impact upon roadway safety and weighs against the permit request. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

Finally, while no criminal activity has been demonstrated at the proposed location, the limited resources of local police protection is a legitimate concern. Three deputies of the Newberry Sheriff's Department patrol the county with one deputy assigned to each of three zones comprising the county. The proposed location is in 200 square miles of Zone 3 and is located on the far extreme end of Newberry County. The Sheriff's Department's response time to an emergency on Scurry Island Road is approximately twenty (20) minutes. Accordingly, the presence of beer and wine sales heightens the potential need for police protection and that protection is strained where a single deputy is required to respond to a location on the edge of the county. Again, such a factor weighs against the permit. Moore v. S.C. Alcoholic Beverage Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992).

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. § 61-4-520(1) (Supp. 1996).

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. § 61-4-520(2) (Supp. 1996).

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. § 61-4-520(4) (Supp. 1996).

4. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1996).

5. In deciding the matter, the fact-finder may consider any impact the granting of the permit will have upon the community. Here the approval of the application would be the first introduction of beer and wine and would negatively impact the community and thus weighs against finding the location proper. Kearney v. Allen, 287 SC. 234, 338 S.E.2d 335 (1985).

6. A relevant consideration is the presence or lack of similar existing businesses in the area. Here, the lack of business in the community weighs against finding the location proper. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

7. A more general but related consideration is whether the area is predominately residential and rural versus commercial. Here, the residential nature of the area weighs against finding the location proper. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

8. The sole determination that a proposed location is within an improper proximity to residences is a sufficient basis by itself to deny a beer and wine permit. Here, the proposed location is within an improper proximity to residences and such a factor alone is a sufficient basis to find the location improper. William Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

9. The degree of difficulty created by traffic is a valid concern. Here, the access and egress to a parking area located close to an unpaved and curvy roadway weighs against finding the location proper Palmer, supra.

10. The degree of strain upon law enforcement is a consideration in denying or granting a beer and wine permit. Here, the availability of only one deputy for a location on the edge of the county weighs against finding the location proper. Moore v. S.C. Alcoholic Beverage Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

11. Considering all relevant factors, the proposed location is not a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 1996).

12. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(7) and (8) (Supp. 1996).

13. The applicant does not meet the requirements for the issuance of a beer and wine permit.

DOR is ordered to deny to Medlin an off-premises beer and wine permit for a location at 2640 Scurry Island Road, Chappells, South Carolina.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 3rd day of  June, 1997

Columbia, South Carolina