SC Administrative Law Court Decisions

Joe Stephenson, d/b/a Lowrys One Stop (Stephenson), filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer and wine permit for 3761 Armenia Road, Chester, South Carolina. A protest was filed by Reverend Roger W. Thomas, First Baptist Church of Lowrys seeking to prevent DOR from granting the application.

In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. No dispute exists that the applicant has good moral character. S.C. Code Ann. § 61-4-520(1) (Supp. 1997). Further, 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. 1997). In addition, 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. 1997). Likewise, the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1997). Additionally, 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. 1997). Finally, the applicant does not owe the state or federal government delinquent taxes, penalties, or interest. S.C. Code Ann. § 61-2-170 (Supp. 1997). Rather, the granting or denying of the permit turns upon the disputed matter of whether Stephenson meets the requirements of the location being proper.

Since the permit is challenged, 23 S.C. Code Regs. 7-90 (Supp. 1997) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 1997), 1-23-600(B) (Supp. 1997) and 1-23-310 (Supp. 1997). The evidence and relevant factors require granting the off-premises beer and wine permit.

Does Stephenson meet the requirements for an off-premises beer and wine permit in light of an allegation that the location is improper?

1. Positions of Parties

Stephenson asserts he meets the statutory requirement. DOR states it would have granted the permit but for the filing of protests asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. While no protestant appeared at the hearing, the DOR Case File indicates the protestant asserts the permit should be denied since the location is not suitable.

2. Findings of Fact

Based on the preponderance of the evidence, the following findings of fact are entered:

A. General Facts of Location

On or about May 11, 1998, Stephenson filed an application with the Department of Revenue for an off-premises beer and wine permit. The application is identified by DOR as AI # 121845. The applicant and the location were investigated by SLED and the investigating agent drew a map generally depicting the immediate area of the proposed location. Following the notices posted by SLED and by the applicant, Reverend Roger W. Thomas, First Baptist Church of Lowrys, challenged the application. The hearing for this dispute was held September 28, 1998, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

The proposed business (and the place where the beer and wine permit will be utilized) is located at 3761 Armenia Road, Chester, South Carolina. The business is a convenience store with business hours of 6:00 a.m. until 10 p.m. seven days a week. When constructed, the facility will contain 2400 square feet providing the sale of convenience items. Further, the location will hold gasoline pumps allowing retail sale of gasoline to the public.

B. Specific Facts of Location

1. Statutory Proximity Factors

First Baptist Church of Lowrys is approximately 800 feet from the proposed location. No other churches are in the immediate area. While the proposed location's building will be visible from First Baptist Church of Lowrys, the two locations are separated by an open field and the major traffic artery of Highway 321.

2. Other Factors

Other factors must be weighed as well. The evidence does not demonstrate the presence of crime in the area near 3761 Armenia Road, Chester, South Carolina. For example, no records of law enforcement officials show arrests or incidents in the area, and no evidence identifies any drug activity. Likewise, Armenia Road and Highway 321 provide adequate traffic routes for the proposed location. Further, the area is home to Crossroads Animal Clinic at a distance of .2 of a mile and, overall, the area has a commercial presence with the frontage on Highway 321 as a major traffic artery.

In addition, when considered as a whole, granting the permit does not adversely affect the character of the area. In fact, if no consideration were given to the dispute concerning the off-premises beer and wine permit application, the establishment itself will be an asset to the community. Further, at a distance of .4 of a mile, Lowrys Grocery holds an off-premises beer and wine permit. In addition, approximately 3 miles from the location is a Texaco station that also holds an off-premises beer and wine permit.

3. Conclusions of Law

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

A. Law of Location Applied to Location Facts

1. Location Factors: General

Under S.C. Code Ann. § 61-4-520 (Supp. 1997), no beer and wine permit may be granted unless the location of the place of business 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 consideration of suitability, but rather any impact on the community must be considered. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985).

2. Location Factors: Proximity

The proximity of the location to residences, churches, schools, and playgrounds is a proper consideration. 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). Indeed, the sole factor of an improper proximity to any one of the institutions of residences, churches, schools, or playgrounds is a proper basis for denying a beer and wine permit. 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).

Here, the evidence demonstrates the area is suitable for commercial activity along Highway 321 with the proposed location accessible from that route. While several houses are in the surrounding area, no interference with residents in the area will result from granting the permit since, overall, the community is not predominately a residential area. Further, while the Lowrys Baptist Church is approximately 800 feet from the proposed location, the church is on the opposite side of Highway 321. Thus, a major highway separates the two locations. Accordingly, the off-premises nature of the permit will not interfere with the church functions. When considered as a whole, the proposed location is not within an improper proximity to residences or churches in the area.

3. Location Factors: Other

A proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon law enforcement. Evidence that granting the permit will place a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). For example, one measure of the strain is evidence of insufficient police to cover the likely crowd that might gather at the location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). Another measure is whether the law enforcement officers have had significant problems with public intoxication at or near the location. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). Is the location near other locations that have been a either a constant source of law enforcement problems or are locations where young people congregate and loiter? Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

In this case, no evidence demonstrates an adverse impact upon law enforcement. First, no evidence exists of a significant degree of crime present in the area. Further, law enforcement is adequately provided by the Chester County Sheriff. Finally, no evidence demonstrates law enforcement has been plagued by problems from other locations in the area having beer and wine permits. Accordingly, lack of law enforcement, strain on law enforcement duties, or the presence of crime, present no basis for denying the permit.

Consideration can be given to the extent to which highway traffic presents a location that is heavily traveled or creates a traffic danger. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, ingress and egress at the proposed location present no traffic concerns. Further, appropriate parking is available at the site so as not to impede highway traffic. Thus, a danger to traffic is not shown and provides no basis for denying the permit.

A valid consideration is whether the surrounding area is substantially commercial. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). In this case, while the area is not broadly commercial, the location is accessed by a major route, Highway 321, which presents a prime location for commercial use. Accordingly, the proposed location is consistent with the general character of a commercial use.

Consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, at least one other location (Lowrys Grocery) within .4 of a mile has an off-premises beer and wine permit. An additional off-premises location (Texaco station) is already on Highway 321 approximately three miles away. Accordingly, the granting of the off-premises permit will not significantly change the character of the area.

Finally, a proper consideration is whether, absent the beer and wine permit, the establishment would be an asset to the community. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). In this instance, the building and service provided to the area will be beneficial. The plans will result in a facility of 2400 square feet providing convenience items as well as gasoline pumps. On the whole, the facility will be an asset to the area.

B. Ultimate Conclusion as to Location

I have considered all of the factors relevant to the proposed location and have given due weight to the evidence presented at the hearing. The proposed location is not within an improper proximity to residences, schools, churches, and playgrounds. Further, other location factors do not weigh in favor of denying the beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1997). Accordingly, Stephenson's application seeks an off-premises beer and wine permit for a location that is a proper location.

Based upon the Findings of Fact and Conclusions of Law, the following is entered:

DOR is ordered to grant Joe Stephenson, d/b/a Lowrys One Stop's application for an off-premises beer and wine permit at 3761 Armenia Road, Chester, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: September 29, 1998

Columbia, South Carolina