ORDERS:
ORDER
I. Statement of the Case
This case is before the Administrative Law Judge Division (ALJD) as a result of an application filed
by Petitioner, James L. Williams (Williams) for an off-premises beer and wine permit. DOR declined
to process the application since on January 6, 1995, an order of the Honorable Alison Renee Lee,
Administrative Law Judge, found the location unsuitable. Judge Lee's decision was subsequently
upheld on appeal by the circuit court in an order filed April 18, 1996.
Under 23 S.C. Code Ann. Regs. 7-96 (1976), an application for a location previously found
unsuitable for a beer and wine permit will not be processed unless the applicant can show some
material change with respect to the location has occurred since the prior denial. A hearing was held
on November 20, 1997, to decide if the South Carolina Department of Revenue (DOR) should be
directed to process the Williams application. Jurisdiction vests in the ALJD under S.C. Code Ann.
§§ 61-2-260 (Supp. 1996), 1-23-600(B) (Supp. 1996) and 1-23-310 (Supp. 1996). I find DOR is
required to process Williams' application since material changes have taken place since the prior
denial.
II. Issue
Have material changes in respect to the Williams location occurred since the prior finding of
unsuitability?
III. Analysis
1. Positions of Parties:
Williams asserts the application should be granted since changes in the conditions have occurred
since the prior denial in 1995. DOR asserts the same factors that existed in 1995 have continued
unchanged, requiring that DOR not process the application.
2. Findings of Fact:
I find, by a preponderance of the evidence, the following facts:
1. In January of 1995, Judge Lee denied Williams an off-premises beer and wine permit for the
location of 1697 Goff Avenue, Orangeburg, South Carolina.
2. The order of Judge Lee was appealed and subsequently upheld by the circuit court in an order
filed April 18, 1996.
3. The 1996 circuit court order found substantial evidence supporting the factual conclusion
that the area is a high crime area and that a substantial amount of late night loitering occurs
on the corner near Williams' business.
4. The 1996 circuit court order denied the permit by relying, at least in part, upon the facts that
the area is a high crime area and that a substantial amount of late night loitering occurs on
the corner near Williams' business.
5. No material changes in the physical layout of the immediate area have occurred from the
time of Williams' first denial to the time of Williams' second application.
6. Violent crime in the area has decreased over the last several years while nonviolent crime has
remained about the same.
7. No substantial loitering exists at the corner where Williams seeks to use his beer and wine
permit.
8. Material changes have occurred with respect to the location sufficient to warrant DOR's
processing the application of Williams.
3. Discussion
Judge Lee determined in 1995 and the circuit court found in 1996 that the location here under review
was improper for a beer and wine permit. Under S.C. Code Ann. Regs. 7-96, DOR is not required
to process the application until the applicant demonstrates material changes have occurred at the
previously denied location. A material change with respect to a location is any meaningful change
to any factor that is of substantial importance to the decision of whether the location for a beer and
wine permit is or is not proper. S.C. Code Ann. § 61-4-520(6) (Supp. 1996); Regs. 7-96. The factors
relied upon in the 1996 circuit court order included the conclusion that the location is in a high crime
area and that a substantial amount of late night loitering occurs on the corner near Williams'
business. Under the evidence presented, these factors have changed materially since the prior denial.
a. Material Changes in Crime Activity in Area
The prior decision correctly examined the degree of crime in the area. Moore v. S.C. Alcoholic
Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992) (fact-finder properly considered
whether location would place strain upon police to adequately protect community). Here, the
evidence demonstrates police and community involvement have impacted positively on the crime
in the area. Testimony from the Sheriff's Office demonstrated the area's past reputation for violent
crime. However, law enforcement in the community has successfully reduced the number of violent
crimes in the community. While what impact such a factor may have on granting or denying a
permit is a matter for DOR to decide, the fact that a change in the violent crime has occurred is a
material change warranting the processing of the Williams application.
b. Material Changes in Loitering in the Area
The prior denial properly considered and relied upon the presence of loitering in the area where
Williams operates his business. See Palmer v. South Carolina Alcoholic Beverage Control
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (denial properly considered fact the location
was where young people congregate and loiter). Under the testimony, no significant degree of
loitering is currently present on the corner where Williams conducts his business. Again, what
impact such a factor may have on the decision to grant or deny the application is a matter for DOR
to consider. However, the change in the degree of loitering is a material change sufficient to require
DOR to process the application.
4. Conclusions of Law
Based on the foregoing Findings of Fact and Discussion, I conclude the following as a matter of law:
1. DOR shall not process an application for an on-premises beer and wine permit where a
previous application has been denied as an improper location unless some material change
with respect to the location has occurred. 23 S.C. Code Regs. 7-96 (1976).
2. A material change with respect to a location is any meaningful change to any factor that is
of substantial importance to the decision of whether the location for a beer and wine permit
is or is not proper. S.C. Code Ann. § 61-4-520(6) (Supp. 1996).
3. The hearing body in the permitting process should consider any factor that demonstrates the
impact a location will have on the community. See Palmer v. S.C. ABC Comm'n, 282 S.C.
246, 317 S.E.2d 476 (Ct. App. 1984).
4. The fact finder may properly consider the fact the location is one that would place strain
upon police to adequately protect the community. Moore v. S.C. Alcoholic Beverage Control
Comm'n, 308 S.C. 167, 417 S.E.2d 555 (1992).
5. The fact finder may properly consider the fact the location is one where people congregate
and loiter. Palmer v. South Carolina Alcoholic Beverage Control Comm'n, 282 S.C. 246,
317 S.E.2d 476 (Ct. App. 1984).
6. Material changes have occurred with respect to the proposed location's impact upon police
coverage and loitering in the area.
7. The material changes with respect to the proposed location warrant DOR's processing
Williams' application.
IV. ORDER
DOR is ordered to process the application filed by Williams for an off-premises beer and wine
permit at 1697 Goff Avenue, Orangeburg, South Carolina.
IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
This 24th day of November, 1997.
Columbia, South Carolina |