SC Administrative Law Court Decisions

The Petitioner, Ernest R. Bennett, d/b/a The Screening Room, Inc. (Bennett) of West Columbia, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine permit and a sale and consumption license for 4211A Augusta Road, Lexington, South Carolina. Rev. Erik Estep filed a protest and subsequently intervened as a party seeking to prevent DOR from granting the permit and license. A hearing on the beer and wine application is required under 23 S.C. Code Regs. 7-90 (Supp. 1996). As to mini-bottles, a hearing is required under S.C. Code Regs. 7-3 (Supp. 1996). The Administrative Law Judge Division (ALJD) has jurisdiction to conduct the required hearings under the contested case provisions of S.C. Code Ann. §§ 1-23-600(B) and 1-23-310 (Supp. 1996). The relevant factors require granting the permit and license.

Does Bennett meet the requirements for an on-premises beer and wine permit and a mini-bottle license?

III. Analysis

1. Positions of Parties:

Bennett asserts he meets the requirements of the statutes. DOR found the applicant qualified for the permit and license and would have granted the application except for the unanswered question of the protestant's challenge to the suitability of the location. The only issue argued by the intervenor is whether the location is proper for a beer and wine permit and a mini-bottle license. Accordingly, all other elements for the permit and license are satisfied with only the location issue in dispute.

2. Findings of Fact:

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

a. General

1. Bennett filed an application with the DOR for an on-premises beer and wine permit and a mini-bottle license.

2. The applications are identified by DOR as AI # 112732 and AI # 112733, respectively.

3. The proposed location of the business and the place where the beer and wine permit and the mini-bottle license will be utilized is 4211A Augusta Road, Lexington, South Carolina.

4. The nature of the business is that of a private club.

5. A protest to the application was filed by Rev. Erik Estep on behalf of Fellowship Baptist Church.

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

7. The hearing on this matter was held May 28, 1997, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

b. Proposed Location

8. From August of 1991 to November of 1992, the proposed location was permitted for an on-premises beer and wine permit by a prior operator.

9. No violations of the Alcoholic Beverage Control laws were charged during the prior operation.

10. The proposed location will operate as a not-for-profit private club providing the sale of snacks, juke box music, pool tables, and video games.

11. Hours of operation will be from 10:00 a.m. to 2:00 a.m. seven days a week.

12. The area is a mixed commercial and residential area.

13. Eight commercial establishments are within 900 feet of the proposed location.

14. Fourteen residences are within 900 feet of the proposed location.

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

16. An off-premises beer and wine permit is possessed by a business less than 900 feet from the proposed location.

17. The area is adequately served by the four-lane traffic route of U.S. Highway 1.

18. Adequate parking exists for over fifty vehicles at the proposed location.

19. The Fellowship Baptist Church is approximately 686 feet from the proposed location.

20. The facilities of the church are in use every day of the week with extensive use on Wednesday and Sunday.

21. From the proposed location, the Church cannot be reached except by crossing the four-lane highway of U.S. Highway 1.

22. The proposed location is not within an improper proximity to the Fellowship Baptist Church.

3. Discussion

a. General Criteria

The only disputed issue is whether the proposed location is proper. Under S.C. Code Ann. § 61-4-520 (Supp. 1996), no beer and wine permit may be granted unless the location of the place of business is a proper location. Additionally, in granting a mini-bottle license it is proper to consider the suitability of the location. Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). 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). Geography alone is not the sole consideration of suitability, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

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. In this case, 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 location sold beer and wine in the past without incurring a violation. While the current applicant seeks to sell mini-bottles as well, the former sale of beer and wine without incurring a violation demonstrates the location is capable of selling alcoholic beverages without disrupting the community. In a related vein, whether similar businesses exist in the area is relevant. Id. Here, a beer and wine permit is operating less than 900 feet from the proposed location.

The character of the entire area as rural versus commercial may be considered. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, while the area has a mixture of residential and commercial, the predominate characteristic is a commercial area served by the major transportation route of U.S. Highway 1. Such a characteristic weighs in favor of granting the permit.

Finally, the proximity of a location to residences or churches may be a proper consideration in examining an application. 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). In this case, however, the church is almost 700 feet away, is on the opposite side of the street, and is separated from the proposed location by a four-lane highway used by traffic to access numerous commercial activities in the area. Likewise, the predominate location of residences in the immediate vicinity is also across the street from the proposed location. The four line highway of U.S. 1 provides a significant separation. Based on all of the circumstances of this case, the permit and license should 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 only issue in dispute is whether the location is proper.

2. Consideration must be given to whether the granting of the permit and license 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).

3. The proximity of a location to residences or churches may be a proper consideration in examining an application. 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).

4. The existence or lack of 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).

5. The character of the entire area as rural versus commercial may be considered. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

6. All factors considered, the applicant's location is suitable and is a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); S.C. Code Ann § 61-6-1820(3) (Supp. 1996); Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981).

7. The applicant meets the requirements for the issuance of a mini-bottle license pursuant to S.C. Code Ann. § 61-6-1820 (Supp. 1996).

8. The applicant meets the requirements for the issuance of an on-premises beer and wine permit pursuant to S.C. Code Ann. § 61-4-520 (Supp. 1996).

DOR is ordered to grant Bennett's application for an on-premises beer and wine permit and a sale and consumption license at 4211A Augusta Road, Lexington, South Carolina.

IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 19th day of June, 1997