SC Administrative Law Court Decisions

David E. Rutledge, d/b/a Touch of Class (Rutledge) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 526 Micah Road, Georgetown, South Carolina. Protests were filed by Alton Lane Cribb, Sheriff of Georgetown County and Earline Heyward a resident of the area. The protestants seek 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, has been a legal resident of South Carolina for 30 days prior to filing the application and occupies a 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 in this case turns upon the disputed matter of whether Rutledge meets the requirement that the location be a proper location.

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). In this case, the evidence and relevant factors require denying the on-premises beer and wine permit.

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

1. Positions of Parties

Rutledge asserts he meets the statutory requirements. 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. The protestants assert 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 April 5, 1998 Rutledge filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 121090. 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, Alton Lane Cribb, Sheriff of Georgetown County, and Earline Heyward, a nearby resident, challenged the application. The hearing for this dispute was held September 29, 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 526 Micah Road, Georgetown, South Carolina. The business is a social club with business hours of Wednesday through Saturday, 7:00 p.m. until 12:00 a.m. The club will be closed Sunday through Tuesday. The operation will provide seating for approximately 20 people and will provide recorded music.

B. Specific Facts of Location

1. Statutory Proximity Factors

Not all of the statutory proximity factors are in issue in this case. The proposed location is not within an improper proximity to churches, schools, or playgrounds. However, a dispute exists as to the appropriateness of the proximity to residences.

Considering the area as a whole, approximately thirty residences are within a half mile radius of the location. The closest residence is that of the protestant, Earline Heyward, at a distance of 105 feet from proposed location. The location is visible from Earline Heyward's property and noise from the location can be heard at her residence. In fact, during prior but recent operations of the club by Rutledge, frequent complaints of noise have been made to the Sheriff. Noise disturbances have occurred during the night time hours of the club which is open Wednesday through Saturday, 7:00 p.m. until 12:00 a.m. The club is closed Sunday through Tuesday.

2. Other Factors

While law enforcement officials from the Sheriff's office show no incidents of crime occurring at the 526 Micah Road location, numerous instances of crime have occurred in locations near the proposed social club. For example, approximately 500 feet from the proposed location is another location known as the Three Door Disco. At the Three Door Disco, investigations as well as arrests have been made for assault and battery with intent to kill, aggravated assault, disorderly conduct, public intoxication, and illegal possession of drugs. At that location, the testimony establishes that young people congregate and loiter. Further, the overall area is identified by the Sheriff's Office as being an area of drug activity.

Police response at night to the area requires approximately 15 minutes and is characterized as "not too bad" for a rural county. However, only five officers are available to cover the entire county.

Further, traffic concerns exist at the location. Micah Road is a dead-end road for which all traffic entering and exiting the proposed location must use the same route. Traffic entering will turn right and traffic exiting will turn left facing the incoming traffic. Thus, no traffic will exit by turning right. Therefore, all traffic is directed along a single road with incoming and outgoing traffic passing each other. Such traffic must be carried by a roadway with a speed limit of 25 miles per hour.

In addition, the proposed location is rural and residential in nature. The only commercial establishment in the immediate area is a bar and social club known as the Three Door Disco 500 feet from the proposed location. This single establishment does not render the vicinity a predominately commercial area. Rather, the character is predominately residential. Further, the character of non-commercial is supported by the residence closest to the proposed location being the home of three children ages ten, twelve, and fourteen.

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 location seeks an on-premises permit which, by definition, will result in the congregation of customers. Approximately thirty residences are within a half mile of the location with one residence being only 105 feet from the proposed location. Prior operation by Rutledge has demonstrated that the permit is not suitable for the residential nature of the area since during the recent operation of the club by Rutledge, frequent complaints of noise have been made to the Sheriff. Indeed, the noise disturbances have occurred during night time hours. Repeated noise disturbances at night are incompatible with residential living. Accordingly, the proposed location is within an improper proximity to residences 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).

Further, the need for likely police intervention must be examined. For example, a relevant consideration 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). A pertinent fact is whether the location is near other locations that have been 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).

Here, the proposed location will have a detrimental impact upon law enforcement. The location is in a rural area of the county. Police response at night to the area is at least 10 to 15 minutes. This response time has been characterized as "not too bad" for a rural county, but is also described as less than adequate since only five officers cover the entire county. Accordingly, given the rural nature of the location, the strain on police coverage is further exacerbated by the granting of an on-premises permit in this area of the county.

Additionally, the evidence confirms a need for police coverage at the proposed location. In fact, intervention is already required for a location only 500 feet from the proposed location. At the Three Door Disco, police intervene three times a week on average. That intervention confirms that public intoxication is already a problem near Rutledge's proposed location and further that at the Three Door Disco, young people congregate and loiter. While Rutledge asserts he will not cater to the same customers as the Three Door Disco, nonetheless, the opportunity for the same disruptions exist at Rutledge's location as well. Given such an opportunity, the police must prepare to cover an additional on-premises location. Such a circumstance negatively impacts law enforcement coverage for the area.

Further, consideration can be given to the extent to which the highway traffic presents a location that 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).

In this case, Micah Road is a dead-end road. Traffic entering the location will turn right; traffic exiting will turn left; no traffic will exit by turning right. Therefore, all traffic is directed along a single road for which all traffic, whether incoming or outgoing, must pass each other. Such traffic must be carried by a highway with a speed limit of 25 miles per hour. The presence of a dead-end highway in a residential area with a speed limit of 25 miles per hour presents less than a satisfactory traffic condition for an on-premises beer and wine permit.

Finally, the overall nature of the area is simply not compatible with an on-premises permit. First, the degree to which the area is characterized as rural is relevant. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, the area is rural. Second, 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). Here, no significant commercial activity is in this area. Finally, the extent to which children are or are not in the area of the proposed location is a valid consideration. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). Here, three children 10, 12, and 14 live only 105 feet of the location. All these factors also require denying the permit.

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 within an improper proximity to residences. Further, other location factors dictate a holding that the location is not a proper location for an on-premises beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1997). Accordingly, Rutledge's application seeks an on-premises beer and wine permit for a location that is not a proper location and thus requires denying the permit.

Based upon the Findings of Fact and Conclusions of Law:

DOR is ordered to deny David E. Rutledge's application for an on-premises beer and wine permit at 526 Micah Road, Georgetown, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: October 2, 1998

Columbia, South Carolina