SC Administrative Law Court Decisions

The Petitioner, Emily Lynn Shirah, d/b/a Ditto's (Shirah) of 302 Marion Street, Clover, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine permit for 1827 North 321, Bowling Green, South Carolina. Captain Doug Taylor 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 Shirah meet the statutory requirements for a beer and wine permit?

III. Analysis

1. Positions of Parties:

Shirah 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 February 10, 1997, Shirah 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 # 113087.

3. The proposed business location and the place where the beer and wine permit will be utilized is 1827 North 321, Bowling Green, South Carolina.

4. The business will operate as a bar and game room.

5. A protest to the application was filed by Captain Doug Taylor, Dan S. LaFar, Jr., Herbert Kirsch, and Margaret Jackson.

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

7. The hearing 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 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. Shirah is of good moral character.

c. Legal Resident and Principal Place of Abode

12. Shirah has resided in South Carolina since 1984.

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

14. Shirah currently resides at 302 Marion Street, Clover, South Carolina, and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

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

e. Age

17. Shirah's date of birth is August 21, 1975.

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

f. Proposed Location

19. The proposed location has not held a beer and wine permit before.

20. The proposed location plans to operate Monday through Friday from 10:00 a.m. to 2:00 a.m. and on Saturday from 10:00 a.m. to midnight.

21. The location will sell snacks and provide a pool table along with video poker machines.

22. Five commercial businesses are within 850 feet of the proposed location and two residences are within 600 feet of the proposed location.

23. The area is predominatly commercial.

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

25. Beer and wine permits are in operation in the immediate area for businesses known as Benny Bob's, Frank's Place and the Hot Spot.

26. An additional location, B.J's Lounge, .4 of a mile from the proposed location, not only holds a beer and wine permit but also holds a minibottle license.

27. Access to the proposed location is via the four-lane highway of Highway 321.

28. Parking at the proposed location consists of twenty-five (25) spaces along the front and side of the premises.

29. Access to and parking at the proposed location are sufficient.

30. The area is lighted by 3 pole lights, 2 spot lights, and 7 outside tube lights.

31. Lighting is sufficient at the proposed location.

32. Bowling Green Presbyterian Church is approximately one half mile and Weeping Mary Baptist Church is approximately 1000 feet from the proposed location.

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

34. Kinard Elementary School is approximately 3.5 miles from the proposed location.

35. The proposed location is not within an improper proximity to schools in the area.

g. Notice

36. Notice of the Shirah application was published in The Herald of Rock Hill, a newspaper published and distributed in York County, with notice published on February 6, February 13, and February 20, 1997.

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

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

39. Shirah 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.

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.

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 predominately commercial community. While only two residences are within 600 feet of the proposed location, five commercial businesses are within 850 feet of the proposed location. The lack of residences and the closeness to the proposed location of several commercial activities places Shirah's business within an area tending to favor the granting of a permit. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984); Cf. William Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

Further, the issuance of the requested permit is not the first introduction of beer and wine in the community since beer and wine permits as well as a minibottle license are operational in the immediate vicinity. Accordingly, the character of the neighborhood will not be significantly altered by the introduction of beer and wine. Such a factor weighs in favor of granting the permit. See Kearney v. Allen, 287 SC. 234, 338 S.E.2d 335 (1985). Likewise, 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). The area contains businesses similar to Shirah's business.

A legitimate inquiry concerns vehicle accessibility and parking at the location. Here, the proposed location has proper access from Highway 321, a well maintained four-lane highway. Further, the location's building provides parking in the front and on the side for at least twenty-five (25) vehicles, a number of spaces adequate for the location. Accordingly, access and parking will have no adverse impact upon roadway safety and weighs in favor of granting 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, the evidence does not contain a record of criminal activity at the proposed location. Accordingly, the presence of beer and wine sales will not heighten a previous record of criminal activity and such a factor weighs in favor of granting the permit. See 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. No beer and wine permit may be granted unless the location is a proper location. S.C. Code Ann. § 61-4-520 (6)(Supp. 1996).

6. The fact-finder may consider any impact the granting of the permit will have upon the community. Here, other permits are in the area and such a factor weighs in favor of the permit. Kearney v. Allen, 287 SC. 234, 338 S.E.2d 335 (1985).

7. A relevant consideration is the presence or lack of similar existing businesses in the area. Here several business of a similar nature are in the area and such a factor weighs in favor of granting the permit. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

8. A relevant consideration is whether the area is predominately residential and rural versus commercial. Here, the area is characterized as a predominately commercial community and weighs in favor of granting the permit. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

9 The residential nature of an area can be a basis by itself to deny a beer and wine permit. Here the area is lacking in a significant number of residences and thus weighs in favor of the permit. William Byers v. S.C. Alcoholic Beverage Control Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991).

10. The degree of difficulty created by traffic is a valid concern. Here, access and parking are sufficient and weighs in favor of the permit Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

11. 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. Here, no record of criminal activity exists for the location and such a factor weighs in favor of the 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).

12. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann. § 61-4-520(6) (Supp. 1996).

13. The applicant gave proper notice of the application by way of newspaper and the display of signs. S.C. Code Ann. § 61-4-520(8) and (9) (Supp. 1996).

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

DOR is ordered to grant to Shirah an on-premises beer and wine permit at 1827 North 321, Bowling Green, South Carolina.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 1st day of July, 1997

Columbia, South Carolina