ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Elliott Kelly (Kelly) of Travelers Rest, South Carolina, filed with the South Carolina
Department of Revenue (DOR), the Respondent, an application for an off-premises beer and wine
permit for 902 White Horse Road, Greenville, 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 is required 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.
II. Issue
Does Kelly meet the statutory requirements for a beer and wine permit?
III. Analysis
1. Positions of Parties:
Kelly 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. The protestants
assert the proposed location is not proper due to the high crime in the area and the presence of a
church in the immediate neighborhood.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
a. General
1. On or about February 4, 1997, Kelly 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 # 113013.
3. The proposed business location and the place where the beer and wine permit will be utilized
is 902 White Horse Road, Greenville, 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 August 18, 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. Kelly is of good moral character.
c. Legal Resident and Principal Place of Abode
11. Kelly has been a resident of South Carolina since 1965.
12. Kelly holds a valid South Carolina driver's license.
13. Kelly 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. Kelly 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. Kelly has never had a beer and wine permit revoked.
e. Age
16. Kelly's date of birth is April 18, 1965.
17. Kelly is over twenty-one years of age.
f. Proposed Location
18. On January 27, 1997, Kelly obtained from the Estate of Elvin O. Picklesimer a two year lease
with an option for a one year renewal on the proposed location.
19. Kelly has operated the location with a temporary beer and wine permit.
20. On August 4, 1997, the Estate of Elvin O. Picklesimer sold the property to Buried Treasure
Ministries, Inc.
21. Buried Treasure Ministries, Inc. is a protestant in this matter.
22. Prior to the purchase by Buried Treasure Ministries, Inc., former owners operated the
proposed location with a beer and wine permit.
23. Kelly intends to operate a business similar to that of the former operators in that he will
provide a convenience store offering assorted food items as well as video games.
24. The hours of operation will be from 9:00 a.m. until 9:00 p.m Sunday through Thursday and
9:00 a.m until midnight on Friday and Saturday.
25. A retail outlet in the vicinity, the Chat and Chew, operates with a beer and wine permit.
26. A substantial number of single family residences are behind the proposed location.
27. A large apartment complex, Aladdin Manor, is in the immediate area.
28. The area is a mixture of residential and commercial uses.
29. The most recent former owner operated the location as JJJ's.
30. While operated as JJJ's, the Sheriff investigated numerous criminal incidents in the
immediate area.
31. Kelly admitted the former operation of JJJ's had a reputation of "having problems."
32. Eight murders have occurred in the immediate vicinity within the past three years.
33. Since Kelly began operating his business in February of 1997, the Sheriff has investigated
over thirty criminal violations resulting from calls from 902, 904, and 906 White Horse
Road.
34. Investigated matters, among others, included illegal drug distribution, weapons violations,
prostitution, drunkenness, and aggravated assault.
35. Within the two week period prior to the hearing, the location was vandalized and six bullets
were fired into the building.
36. Buried Treasure Ministries, Inc. is a "store-front" church next door to the proposed location
and shares a common wall with Kelly's business.
37. Among other activities, Buried Treasure Ministries works to rehabilitate drug users and
prostitutes and assists in finding employment opportunities for the homeless.
38. Buried Treasure Ministries provides an after-school tutoring program through the Salvation
Army with such program operated for children in the first through sixth grade.
39. A school bus stops on the corner near the proposed location.
40. The proposed location is not a proper location for a beer and wine permit.
g. Notice
41. Notice of the Kelly application was published in The Greenville News, a newspaper
published and distributed in Greenville County, with notice published on January 27,
February 3, and February 10, 1997.
42. Notice of the Kelly application appeared at least once a week for three consecutive weeks in
a newspaper most likely to give notice to interested citizens.
43. Kelly gave notice to the public by displaying a sign for fifteen days at the proposed business.
44. Kelly gave notice of the application by the required advertising by newspaper and display of
signs.
3. Discussion
The only matter disputed here 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 S.C. 234, 338 S.E.2d 335 (1985). When a
location is a constant source of law enforcement problems, such evidence tends to support a denial
of a permit. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 247 S.E.2d 476
(Ct. App. 1984); Moore v. S.C. Alcoholic Beverage Comm'n, 308 S.C. 168, 417 S.E.2d 555 (1992);
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). In addition the church next door operates a
program that will place school age children in the vicinity on a regular basis.
Here, the area is characterized by a high crime rate. While operated as JJJ's, the Sheriff investigated
numerous criminal incidents in the immediate area. Kelly admitted the former operation of JJJ's had
a reputation of "having problems." The area does indeed have a significant criminal problem. Eight
murders have occurred in the immediate vicinity within the past three years. Even when the business
has been operated by Kelly, crime has not diminished. In fact, from Kelly's beginning in February
of 1997 until the date of the hearing, the Sheriff investigated over thirty criminal violations resulting
from calls from 902, 904, and 906 White Horse Road. The investigated matters are serious
violations involving illegal drug distribution, weapons violations, prostitution, drunkenness, and
aggravated assault. Even within the two week period prior to the hearing, the location was
vandalized and six bullets were fired into the building. Further, the evidence establishes the corner
at which the proposed business operates is a known location for prostitution and loitering.
The high crime rate alone is sufficient to deny the permit. In addition, however, a school bus stops
near the location, and the church operates a tutoring program for children. A beer and wine permit
is even more of a source of potential problems when the area is utilized by school age children at bus
stops and as a site for tutoring sponsored by the Salvation Army. The location is not proper for the
sale of beer and wine.
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. Kearney v. Allen, 287 SC. 234, 338 S.E.2d 335 (1985).
6. When a location is a constant source of law enforcement problems, such evidence tends to
support a denial of a permit. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C.
246, 247 S.E.2d 476 (Ct. App. 1984); Moore v. S.C. Alcoholic Beverage Comm'n, 308 S.C.
168, 417 S.E.2d 555 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).
7. The presence of children near a proposed location is a relevant factor. See Smith v. Pratt,
258 S.C. 504, 189 S.E.2d 301 (1972).
8. Considering all relevant factors, the proposed location is not a proper location due to the high
incidence of crime in the immediate area and the presence of children in the vicinity. S.C.
Code Ann. § 61-4-520(6) (Supp. 1996).
9. 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).
10. The applicant does not meet the requirements for the issuance of a beer and wine permit.
IV. ORDER
DOR is ordered to deny to Kelly an off-premises beer and wine permit for a location at 920 White
Horse Road, Greenville, South Carolina.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
This 21st day of August, 1997
Columbia, South Carolina |
