SC Administrative Law Court Decisions

This matter comes before me pursuant to S.C. Code Ann. §§ 1-23-310, et seq. (1986 & Supp. 1996) and S.C. Code Ann. § 61-2-260 (Supp. 1996) upon the filing of an application (AI#116268) by Petitioner, Mary Newton, for an off-premises beer and wine permit for a location at 1502 North Jones Road, Olanta, in Florence County. Upon receipt of written protests to the application, the South Carolina Department of Revenue ("DOR") transmitted the case to the Administrative Law Judge Division for a hearing. The contested case hearing was conducted on December 15, 1997, at the Administrative Law Judge Division in Columbia. Testifying at the hearing in protest of the proposed location were the Reverend Joe Seay, William G. Kelley, and Franklin McAllister of the Florence County Sheriff's Office. Petitioner and her son, Marion Benton, testified in support of the application. Upon review of the relevant and probative evidence and applicable law, the application for an off-premises beer and wine permit is DENIED.

By a preponderance of the evidence, I find:

Petitioner seeks an off-premises beer and wine permit for a location at 1502 North Jones Road, Olanta, in Florence County, South Carolina, having filed an application (AI #116268) with DOR on July 14, 1997.

Upon motion granted, DOR was excused from appearance at and participation in the contested case hearing on the ground that it would have granted the permit but for the unanswered question of the suitability of the proposed location.

The Reverend Joe Seay, pastor of Bethel Baptist Church, intervened in this action to protest the issuance of the permit.

The DOR file was incorporated into the record at the hearing.

The proposed location is in an unincorporated area of Florence County at the intersection of North Jones and North Bethel Roads near the Town of Olanta.

The area immediately surrounding the proposed location is rural and agricultural in nature and includes commercial and residential properties.

Kelley Grain Company is located across North Jones Road from the proposed location.

The Bethel Baptist Church is located approximately 400 feet from the proposed location. A playground and a parsonage are located on the church's property.

Rev. Seay and his family, which includes two small children, reside at the church parsonage.

The lease for the proposed location is in the name of Robert Benton, Petitioner's brother.

Robert Benton is currently incarcerated for a criminal conviction.

The nearest establishment licensed to sell beer and wine is located approximately three miles from the proposed location.

Because the proposed location is located in an unincorporated area, the residents of the area rely on Florence County Sheriff's Office for police protection.

The response time of the Sheriff's Office to the proposed location may be as much as twenty-five minutes, depending upon the location of the patrol unit at the time of dispatch.

The proposed location is a grocery and convenience store doing business as Kelly's Food Store.

The proposed location will be open daily until 11:00 p.m., although the location's business hours have been erratic and the business has been advertised as being open twenty-four hours a day.

Gerald Kelley d/b/a Kelley's Grocery was the proprietor of the proposed location and held a beer and wine permit for the location from 1979 until 1997.

Gerald Kelley was shot and killed in 1997 as a result of an altercation with a customer.

The proposed location has operated for several months with a temporary permit to sell beer and wine.

While operating under a temporary permit, the location has experienced loitering, excessive car-stereo noise, and car racing during the late evening hours.

The sale of beer or wine at the proposed location is likely to be detrimental to the public interest because of the increased threat of violence and crime and the unavailability of adequate law enforcement in the community.

The inability of police to adequately protect the church and homes nearby the proposed location renders the location unsuitable to sell beer and wine for off-premises consumption.

The proximity of the church and residence renders the proposed location unsuitable.

Petitioner is a fit person to sell beer and wine.

Petitioner has never been cited for any violations of the alcoholic beverage control laws.

Petitioner has never had a permit to sell beer and wine revoked.

Petitioner is over twenty-one years of age, is a citizen of the State of South Carolina, and has maintained her principal residence in South Carolina for more than thirty days.

Notice of application appeared in the Lake City News and Post on June 11, 18 and 25, 1997.

Based upon the above Findings of Fact, I conclude as a matter of law, the following:

The Administrative Law Judge Division has subject-matter jurisdiction in contested cases involving the issuance of beer and wine permits. S.C. Code Ann. § 61-2-260 (Supp. 1996). See also South Carolina Administrative Procedures Act, §§ 1-23-310 et seq. (1986 & Supp. 1996), and South Carolina Revenue Procedures Act §§ 12-60-10 et seq. (Supp. 1996).

"A person engaging in the business of selling beer, ale, porter, wine, or a beverage which has been declared to be nonalcoholic and nonintoxicating under Section 61-4-10 must apply to the department for a permit to sell these beverages." S.C. Code Ann. § 61-4-500 (Supp. 1996).

S.C. Code Ann. § 61-4-520 (Supp. 1996), which sets forth the requirements for the issuance of a beer and wine permit, provides as follows:

No permit authorizing the sale of beer or wine may be issued unless. . .

(6) The location of the proposed place of business of the applicant is in the opinion of the department a proper one.

(7) The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds and churches. . . .

The determination of suitability of a location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

Although "proper location" is not statutorily defined, broad discretion has been vested in the finder of fact in determining the fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972); Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). The issuance of a liquor license (or a beer and wine permit), "ordinarily rests within the sound discretion of the body or official to whom the duty of issuing it is committed; moreover, the power to issue such a license also involves the power to refuse it." Wall v. South Carolina ABC Comm'n, 269 S.C. 13, 15, 235 S.E.2d 806, 807 (1977) [citing Terry v. Pratt, 258 S.C. 177, 187 S.E.2d 884 (1972)]. "[T]he issuance or granting of a license to sell beer or alcoholic beverages rests in the sound discretion of the body or official to whom the duty of issuing it is committed." Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). As the trier of fact, an administrative law judge is authorized to determine the fitness or suitability of the proposed business location of an

applicant for a permit to sell beer and wine using broad but not unbridled discretion. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).

A beer and wine permit may be denied where the sale of beer or wine at a location is likely to be detrimental to the public interest because of the unavailability of adequate law enforcement in the community. Moore v. South Carolina ABC Comm'n, 304 S.C. 356, 404 S.E.2d 714 (Ct. App. 1991) (reh'g denied May 30, 1991). Cf. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973) (where crime is a factor in a community, law enforcement considerations are important); Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (fact finder may consider whether "there have been law enforcement problems in the area").

The record establishes that this business has had problems with disturbances of the peace under the current management. The character of the business would remain the same, and would continue to present a challenge for law enforcement.

While there is no minimum distance requirement, proximity of a church, residence, playground, or school to a proposed location by itself is an adequate ground for denial of a beer and wine permit. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Cf. Moore v. South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).

The issuance of the permit would have an adverse impact upon the surrounding community.

Because of the close proximity of the proposed location to a church and to residences, the location's recent history of disturbances in the late evening hours, and the unavailability of adequate law enforcement, the proposed location is unsuitable for the issuance of a beer and wine permit.

Any issues raised or presented in the proceedings or hearing of this case not specifically addressed in this Order are deemed denied. ALJD Rule 29(B).

IT IS THEREFORE ORDERED that the application for an off-premises beer and wine permit sought by Petitioner is denied.

AND IT IS SO ORDERED.

__________________________________

STEPHEN P. BATES

ADMINISTRATIVE LAW JUDGE

January 20, 1998

Columbia, South Carolina