SC Administrative Law Court Decisions

The Petitioner, Clarence E. Wilson, d/b/a Club Unique (Wilson) of 322 S. Kilbourne Road, Columbia, South Carolina 29209, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for an on-premises beer and wine permit and a minibottle license. The permit and license are sought for use at 670 Meadowlark Drive, Chapin, South Carolina 29036. Protests were filed by Joseph Herndon and the Lexington County Sheriff's Department seeking to prevent DOR from granting the permit and license. Regulations 23 S.C. Code Ann. Regs. 7-90 and 7-3 require a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 1996), 1-23-600(B) (Supp. 1996) and 1-23-310 (Supp. 1996). The evidence and relevant factors require granting the permit and license.

Does Wilson meet the requirements for an on-premises beer and wine permit and a minibottle license?

III. Analysis

1. Positions of Parties:

Wilson asserts he meets the statutory requirements for a permit and license. 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 permit and license should be denied since the location is not proper and in particular the permit and license should be denied since the distance is less than 500 feet.

2. Findings of Fact:

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

a. General

1. On or about June 3, 1997, Wilson filed an application with the Department of Revenue for an on-premises beer and wine permit and a minibottle license.

2. The applications are identified by DOR as AI # 115413 and AI # 115414.

3. The proposed business location and the place where the permit and license will be utilized is 670 Meadowlark Drive, Chapin, South Carolina 29036.

4. The permit and license will be used in a restaurant.

5. A protest to the application was filed by Joseph Herndon and the Lexington County Sheriff's Department.

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

7. The hearing was held November 4, 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. The applicant is of good moral character.

c. Reputation For Peace and Good Order In The Community

12. Club Unique, a corporate entity, is unrelated to the former business operation known as the C&L Social Club.

13. The Club Unique has not created a lack of peace nor created disorder in the community.

14. The reputation of Club Unique is one of peace and good order in the community.

d. Legal Resident and Principal Place of Abode

15. Wilson has resided in South Carolina since 1955.

16. Wilson holds a valid South Carolina driver's license.

17. Wilson currently resides at 322 S. Kilbourne Road, Columbia, South Carolina 29209 and resided in South Carolina for more than 30 days prior to filing the application for a beer and wine permit.

18. Wilson 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.

e. Prior Revocation Of Beer or Wine Permit

19. Wilson has not had a beer and wine permit revoked.

f. Age

20. Wilson's date of birth is October 22, 1955.

21. Wilson is over twenty-one years of age.

g. Proposed Location

22. The proposed location was previously operated as the C&L Social Club from July 1990 until mid-1995.

23. During the prior operation, citations related to beer and wine and minibottles were issued in 1992 for permitting the consumption of liquor by a non-member and in 1991 for permitting gambling.

24. The proposed location will operate as a restaurant with hours on Thursday and Friday from 8:00 p.m. to 2:00 a.m., on Saturday from 8:00 p.m. until midnight and will not be open other days of the week.

25. The facility will provide seating for prepared meals and will offer recorded music, live music, and video games.

26. A SLED employee depicted the immediate area of the proposed location by a map not drawn to scale.

27. The area is residential.

28. The closest residence is 500 feet away, the next closest 770 feet, and the third closest 1100 feet.

29. Other residences consist of one residence at .3 of a mile, three at .4, six at .5, three at .6, four at .65, and one at .7 of a mile from the proposed location.

30. The proposed location is relatively isolated in that the building is separated from the residences by a significantly wide area of woods.

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

32. No beer and wine permits or minibottle licenses are operating in the immediate area.

33. Meadowbrook Road and Lazy Brook Road provide adequate traffic routes for the proposed location.

34. Providence AME Church is 581 feet from the entrance door of the proposed location and Mt. Zion AME Church is 5.3 miles away.

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

36. No schools are in the immediate area and the only recreation area is a baseball field no longer in use.

37. Records of law enforcement officials show sixteen incidents occurring in and around the proposed location from January of 1991 until August of 1995.

38. One of the sixteen incidents included a death resulting from a gunshot wound.

39. Of the remaining fifteen incidents, four were burglary, five were various degrees of assault, four were trespassing or refusal to leave the premises when asked to do so by employees of the club, one was a hit and run, and one was a bar fight.

40. Law enforcement records show no crime at the location since 1995.

41. Law enforcement records show no incidents involving drugs at the location for any time period from 1991 to the present.

42. While the testimony of area residents demonstrates their belief that a drug problem exists in the area, law enforcement records show no arrests for drugs.

43. The testimony of one law enforcement official shows he recalls one arrest for drugs.

44. At least one and perhaps two law enforcement officers are employed by the City of Chapin.

45. The Chapin area has two resident deputies from the Lexington County Sheriff's Department.

h. Notice

46. Notice of Wilson's application was published in The State, a newspaper published and distributed in Richland County, with notice published on April 24, 28 and May 5, 1997.

47. Notice of the application appeared at least once a week for three consecutive weeks in a newspaper most likely to give notice to the public.

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

49. Wilson gave notice of the application by the required advertising by newspaper and display of signs.

3. Discussion

In deciding this matter, noteworthy consideration must be given to the fact that no opposition to the location has been expressed by DOR. That agency has the sole responsibility for granting permits and licenses. See S.C. Code Ann. § 61-2-70 (DOR has sole and exclusive power to issue all licenses, permits, and certificates under Title 61). The filing of a protest by residents of the area does not remove DOR's responsibility over the appropriateness of permits and licenses. Rather, the protests merely denies DOR the authority to grant permits and licenses until a hearing is held. See S.C. Code Ann. Regs. 7-90 (when the issuance of a beer and wine permit is protested, no application will be approved unless a hearing is held) (emphasis added); S.C. Code Ann. Regs. 7-3 (when the issuance of a minibottle license is protested, no application will be approved unless a hearing is held) (emphasis added). No provision, however, relieves DOR from its obligation to deny improper permits or licenses. Indeed, given DOR's duty to deny improper applications, the fact that DOR did not deny the Wilson application is tantamount to a conclusion by DOR that the location is proper. See South Carolina Nat'l Bank v. Florence Sporting Goods, 241 S.C. 110, 127 S.E.2d 199 (1962) (absent proof to the contrary, public officers are presumed to have faithfully performed the duties with which they are charged). Accordingly, having not denied the permit and license, DOR's investigation must have resulted in a conclusion that the Wilson permit and license are proper. Against this background, the location must be reviewed.

a. General Criteria

No factual dispute exists in this matter as to the applicant's good moral character, the reputation of Club Unique being one for peace and good order in the community, Wilson being a legal resident of South Carolina for 30 days with a principal place of abode in South Carolina for 30 days prior to filing the application, Wilson not having had a beer or wine permit revoked within two years of the date of the current application, or Wilson being at least twenty-one years of age. The issue in dispute 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 minibottle 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 considering granting the permit or license, the permit or license may be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1996); 23 S.C. Code Ann. Regs. 7-88 (1976).

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. The permit and license are granted.

1. Distance Measurement

No basis exists to deny the beer and wine permit on the ground that the proposed location is within 500 feet of a church. Rather, the measurement test does not apply to beer and wine permits. S.C. Code Ann. § 61-6-120 (Supp. 1996); See Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972) (measurement of 500 feet applicable to liquor but not to beer and wine permits).

As to the minibottle license, no license can be granted if the proposed location is within five hundred feet of a church where the distance is measured by "following the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare from the nearest point of the grounds in use as part of such church." S.C. Code Ann. § 61-6-120 (Supp. 1996). The measurement is made by beginning at the "the nearest entrance of the place of business" and ending at "the nearest point of entrance to the grounds of the church . . . , or any building in which religious services . . . are held, whichever is the closer." See S.C. Code Ann. Regs. 7-11 and 7-55.

Here, the SLED agent's measurement is 581 feet from the proposed location to Providence AME Church. While testimony of residents in the area states that the distance is less than 500 feet, the measurement by the SLED agent is more persuasive and is consistent with the requirements of § 61-6-120 and S.C. Code Ann. Regs. 7-11. Accordingly, the minibottle license is proper under the 500 feet requirement.

2. Proximity to Churches and Residences

The proximity of a beer and wine permit to residences, churches, schools, and playgrounds is a proper consideration in the decision to grant or deny . 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). Likewise, in reviewing a minibottle license, suitability of the location, including the presence of residences and churches, may be considered. See Schudel v. S.C. ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (even though not listed as a statutory condition of licensing, the suitability of the proposed location of the business is a proper consideration).

Again, it is noteworthy that DOR did not find the location unacceptable. While not determinative of this matter, such a decision is entitled to consideration. Considering all of the circumstances, the proximity to residences or churches in the area is not a basis for denying the permit and license. Here, the nearest residence is approximately 500 feet away. Other residences are further away and are separated by a significantly wooded area which surrounds the proposed location. Likewise, the location presents no significant impediment to church activities since the location will be closed on Wednesdays and Sunday. Thus, the location is not improper in relation to residences and churches.

3. Law Enforcement Considerations

The degree of strain placed upon police to adequately protect a community is a valid consideration in a permit or license review. Moore v. S.C. ABC Comm'n, supra. Additionally, the continuing presence of crime at a location is a factor in reviewing a permit or license request. See Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (existing crime in the area would be worsened by granting the permit). See Palmer v. S.C. ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (fact that an area has been a constant source of law enforcement problems is a valid consideration for a permit review).

A. Strain on Police Resources

Here, the area has two resident deputies. No persuasive evidence demonstrates that crime in the area is so pervasive as to unduly tax the available law enforcement resources provided by the county. The evidence shows at least one and perhaps two additional law enforcement officers exist in the City of Chapin. While the city law enforcement may lack jurisdiction over the proposed location, the existence of the city police serves to reduce the demand on law enforcement resources given by the two resident deputies.

B. High Crime or Continuing Crime

Here, the extent of crime in the area is evidenced by sixteen incidents in which law enforcement was called to the location. After a careful and thoughtful review of the arguments and evidence presented in this case, the facts proven do not show the area is a constant source of law enforcement concerns.

First, while some of the residents of the immediate area surrounding the proposed location assert drugs were a problem during the prior operation of the location, the evidence does not support such a conclusion. While such impressions may be prevalent, evidentiary support is needed to transform those impressions into facts. Ronald Byers v. S.C. ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). The evidence shows that during 1991 to 1995, the period of the previous operation, no arrests or incident reports were issued for drug offenses. In fact, the testimony shows that only one drug-related arrest could be recalled for the period and even that arrest was not reflected in any written report for the five year period.

Second, during the five year period of 1991 to 1995, on average, only three responses per year for police intervention were documented. Of the sixteen incident reports, even noting the fact that one of the incidents was a death by a gunshot, the evidence does not establish an area characterized by high crime. For example, four of the incidents were burglaries which occurred after the location was closed. Thus, the operation did not in any direct way contribute to crime in the area. The magnitude of the five incidents of assault were not treated as particularly serious since all but one resulted in advice from the law enforcement officer directing the victim to seek assistance from a magistrate. Finally, four trespassing violations occurred due to private security officers performing their duty to maintain order at the location. The security officers called law enforcement to assist in removing patrons who were unruly and who refused to leave.

Third, the facts show only that the prior operator had some involvement with law enforcement. While that factor is entitled to some weight, the new operation is not a private club as was the former business. Here, the business will operate as a restaurant and will be policed by SLED to assure that it continues to meet the restaurant requirements.

Further, an even more significant factor is whether the documented prior crime has a demonstrated continuing presence in the area. In the instant case, the evidence presented to me does not prove a continuing crime presence. In fact, the evidence shows no arrests, no violations, no incident reports, and no police involvement for the remaining portion of 1995 through 1997. Such a record simply cannot support a conclusion that the area is a high crime area or that prior crime has a continuing presence.

4. Conclusions of Law

Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:

1. In considering granting a permit or license, the permit or license may be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1996); 23 S.C. Code Ann. Regs. 7-88 (1976).

2. Since Wilson intends to operate a bona fide business engaged primarily and substantially in the preparation and serving of meals, no minibottle license can be issued until satisfying the statutory and regulatory requirements for the operation of a restaurant. S.C. Code Ann. § 61-6-1820(1), 61-6-20(2), and S.C. Code Ann. Regs. 7-19.

3. The applicant possesses good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 1996); S.C. Code Ann. § 61-6-1820(2) (Supp. 1996).

4. The corporation has a reputation for peace and good order in the community. S.C. Code Ann. § 61-6-1820(2) (Supp. 1996).

5. 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); S.C. Code Ann. § 61-6-1820(7) (Supp. 1996).

6. 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).

7. The applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1996); S.C. Code Ann. § 61-6-1820(6) (Supp. 1996).

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

9. The proximity of a location to residences and churches is a proper consideration. 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).

10. The proposed location is not within an improper proximity to residences or churches so as to require denying a permit and license. Byers v. S.C. ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991); Moore v. S.C. ABC Comm'n, supra.

11. The degree of strain placed upon police to adequately protect a community is a valid consideration in a permit or license review. Moore v. S.C. ABC Comm'n, Id.

12. The law enforcement resources in the area of the proposed location are not so unduly taxed as to warrant denying a permit and license. Moore v. S.C. ABC Comm'n, Id.

13. The continuing presence of crime at a location is a factor in reviewing a permit or license request. See Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

14. The presence of crime in the area of the proposed location is not so significant as to warrant denying a permit and license. See Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

15. Considering all relevant factors, the proposed location is a proper location for a beer and wine permit and for a minibottle license. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); S.C. Code Ann. § 61-6-1820(3) (Supp. 1996).

16. 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); S.C. Code Ann. § 61-6-1820(4) and (5) (Supp. 1996).

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

18. 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 Wilson's application for an on-premises beer and wine permit and a sale and consumption license at 670 Meadow Lark Drive, Chapin, South Carolina subject to Wilson complying with the requirements of §§ 61-6-1820(1), 61-6-20(2), and S.C. Code Ann. Regs. 7-19.

IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

This 25th day of November, 1997.

Columbia, South Carolina