ORDERS:
ORDER
I. Statement of the Case
The Petitioner, Henry C. Falls (Falls) of 1379 Highway 324, York, South Carolina, filed with the
South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises
beer and wine permit for 321 By-Pass, York, South Carolina. C. M. Morton, Chief of Police, City
of York 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 Falls meet the statutory requirements for a beer and wine permit?
III. Analysis
1. Positions of Parties:
Falls 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 protestant
asserts 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 March 13, 1997, Falls 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 # 113872.
3. The proposed business location and the place where the beer and wine permit will be utilized
is 321 By-Pass, York, South Carolina.
4. The business will operate as a restaurant.
5. A protest to the application was filed by C. M. Morton, Chief of Police, City of York .
6. Except for the unresolved suitability of location issue, DOR would have issued the permit.
7. The hearing was held August 28, 1997, with notice of the date, time, place and subject matter
of the hearing given to the applicant, DOR, and the protestant.
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. Falls is of good moral character.
c. Legal Resident and Principal Place of Abode
12. Falls was born in South Carolina and has resided in South Carolina since his birth.
13. Falls holds a valid South Carolina driver's license.
14. Falls currently resides at 1379 Highway 324, York, South Carolina, and resided in South
Carolina for more than 30 days prior to filing the application for a beer and wine permit.
15. Falls 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. Falls has never had a beer and wine permit revoked.
e. Age
17. Falls's date of birth is August 23, 1935.
18. Falls is over twenty-one years of age.
f. Proposed Location
19. The proposed location has not been used in the past to sell beer and wine.
20. The proposed location will operate as a restaurant with hours and days of operation from
9:30 a.m. to 9:00 p.m. Monday through Saturday with no hours of operation on Sunday.
21. The area is a commercial area consisting of a mini-mall with a beauty salon, a laundromat,
a barber shop, and several vacant spaces.
22. Surrounding buildings consist of mini-warehouse storage facilities.
23. A retail business within 169 feet of the proposed location holds an off-premises beer and
wine permit, and a retail liquor store is located in the immediate area.
24. The location is adequately served by the traffic route of Highway 321.
25. Parking for approximately 40 vehicles are available at the proposed location.
26. No churches are in the immediate vicinity since the two churches in the area have recently
moved.
27. During 1996 and 1997, businesses in the area have been the scene of several burglaries.
28. The applicant operated a similar business for 31 years without any law enforcement
difficulties.
29. The new proposed location is approximately .5 of a mile from the former location.
30. The business will provide meals consisting of steaks, seafood and chicken among other
items.
31. Customers of the former business are expected to be the primary customers of the new
business.
32. The former business produced over 70% of its revenue from the sale of food, and the new
business is expected to provide a comparable percentage.
g. Notice
33. Notice of the Falls application was published in a newspaper published and distributed in
York County, with notice published on February 20, 27 and March 6, 1997.
34. Notice of the Falls application appeared at least once a week for three consecutive weeks in
a newspaper most likely to give notice to interested citizens.
35. Falls gave notice to the public by displaying a sign for fifteen days at the proposed business.
36. Falls 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 proposed location is a proper location. 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).
b. Basis For Decision
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.
I conclude the permit must be granted. It is relevant whether similar existing businesses exist in the
area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, a retail liquor license and an off-premises beer and wine permit are operating in the same area as the proposed location. Thus, the
introduction of an on-premises beer and wine permit will not be a substantial change to the area.
Additionally, the character of the entire area as commercial may be considered. Byers v. S.C. ABC
Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, the area is a commercial area with
several retail merchants in the immediate vicinity. Thus, the area has public participation as the
norm and is not an area incompatible with the proposed restaurant under consideration here.
Finally, law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d
191 (1973). Here, the evidence demonstrates the applicant will operate a restaurant similar to one
he has run before. The prior restaurant had no law enforcement difficulties and the manner of
operation of the new business does not indicate law enforcement will be a concern in the new
business. Additionally, the hours of operation do not exceed 9:00 p.m. and will not present a law
enforcement concern for operations in the early morning hours. Accordingly, no persuasive basis
exists to deny the permit based on law enforcement grounds.
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 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).
6. 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).
7. The character of the entire area as commercial may be considered. Byers v. S.C. ABC
Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
8. The 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).
9. Law enforcement considerations are important. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d
191 (1973).
10. Considering all relevant factors, the proposed location is a proper location. S.C. Code Ann.
§ 61-4-520(6) (Supp. 1996).
11. 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).
12. The applicant meets the requirements for the issuance of a beer and wine permit.
IV. ORDER
DOR is ordered to grant to Falls an on-premises beer and wine permit at 321 By-Pass, York, South
Carolina.
AND IT IS SO ORDERED.
__________________________________
RAY N. STEVENS
Administrative Law Judge
This 29th day of September, 1997
Columbia, South Carolina |