ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Ronald Coley, d/b/a Buck's Video (Coley) of Chester, South Carolina filed with the
South Carolina Department of Revenue (DOR), the Respondent, an application for an off-premises
beer and wine permit for 200 Pinckney Street, Chester, South Carolina. Rev. Greg Keller, Pastor,
First Church of the Nazarene 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 Coley meet the statutory requirements for a beer and wine permit?
III. Analysis
1. Positions of Parties:
Coley asserts he 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. While no
protestants appeared at the hearing, correspondence in the record asserts 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 January 8, 1997, Coley 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 # 112549.
3. The proposed business location and the place where the beer and wine permit will be utilized
is 200 Pinckney Street, Chester, South Carolina.
4. The business will operate as a convenience store.
5. A protest to the application was filed by Rev. Greg Keller, Pastor, First Church of the
Nazarene.
6. Except for the unresolved suitability of location issue, DOR would have issued the permit.
7. The hearing was held June 9, 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. The proposed location previously operated with an off-premises beer and wine permit as
Show Time Video & Convenience from early 1991 through May of 1995.
9. No evidence suggests problems of a significant degree occurred during the previous
operation.
10. The proposed location sells convenience store food items, supplies, and videos and provides
video poker machines for play by the public.
11. The immediate vicinity of the proposed location is a mixture of residential and commercial
use with four commercial establishments and seven residences within 400 feet of the
proposed location.
12. The four commercial establishments which hold off-premises beer and wine permits are
located 165 feet, .2 of a mile, .5 of a mile and .7 of a mile from the proposed location.
13. The location is adequately served by Pinckney Street, Bell Street, Nella Road, and Eli Street.
14. Parking spaces for 20 vehicles is adequate.
15. From the proposed location, First Church of the Nazarene is 644 feet and First Freewill
Baptist Church is 948 feet.
16. The proposed location will not present an impediment to conducting church activities.
3. Discussion
a. General Criteria
The only issue in dispute is the location. Under S.C. Code Ann. §61-4-520 (Supp. 1996), no beer and
wine permit may be granted unless the proposed location is proper. 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 suitability consideration, but rather any impact on the community
must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).
The decision of whether a proposed location is proper is highly factual and is based upon the
weighing and balancing of numerous considerations. I have considered all relevant factors in my
deliberations and have given due weight to the evidence presented at the hearing. No protestant
appeared at the hearing and no factual explanations were presented demonstrating the location was
improper. On the contrary the only evidence presented demonstrated the location was proper.
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 in the past. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801
(1973). Here, the location operated from 1991 to 1995. No evidence was presented to me to
demonstrate the prior beer and wine sales presented an improper impact upon the community.
Likewise, the existence of similar existing businesses already operating in the area weighs in favor
of the permit. Id. 261 S.C. 168, 198 S.E.2d 801 (1973). Here, at least four commercial entities
within .7 of a mile from the proposed location have off-premises beer and wine permits. The impact
of the proposed location upon traffic in the area can be a consideration for denial of a permit.
Palmer, supra. Here, however, the area is adequately served by existing traffic routes and the
parking of 20 vehicles is adequate for the location. While a location's proximity to churches can be
a proper ground by itself to deny the permit (Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d
555 (1992)), here, the distances are such that no disruption to church activities is likely. Finally, law
enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
Here, no evidence suggests the area is characterized by previous criminal activity. Accordingly, the
preponderance of the evidence supports granting the requested permit.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. No testimony shows a lack of 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).
6. 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 in the past. Taylor v. Lewis, 261 S.C. 168, 198
S.E.2d 801 (1973).
7. The existence of similar businesses operating in the area weighs in favor of the permit.
Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).
8. The impact of the proposed location upon traffic in the area can be a consideration for denial
of a permit. Palmer, supra.
9. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann.
§ 61-4-520(6) (Supp. 1996).
10. 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).
11. The applicant meets the requirements for the issuance of a beer and wine permit.
IV. ORDER
DOR is ordered to grant to Coley an off-premises beer and wine permit at 200 Pinckney Street,
Chester, South Carolina.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
This 10th day of June, 1997
Columbia, South Carolina |
