SC Administrative Law Court Decisions

Paul D. Sanders, Sr. (Sanders) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 2707-A Business Highway 21, Fort Mill, South Carolina. Protests were filed by Capt. Doug Taylor of the York County Sheriff's Office and Reverend Victor C. Wilson both 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 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 turns upon the disputed matter of whether Sanders 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 on-premises beer and wine permit.

Does Sanders 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

Sanders 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 March 23, 1998 Sanders filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 121095. 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 Victor C. Wilson and Capt. Doug Taylor challenged the application and presented this controversy. The hearing for this dispute was held Thursday, October 1, 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 2707-A, Business Highway 21, Fort Mill, South Carolina. The business is a restaurant open 24 hours a day Monday through Saturday but with no hours on Sunday. The operation will provide seating for 40 and live music will not be provided.

B. Specific Facts of Location

1. Statutory Proximity Factors

Mount Zion AME Church shares a property line with the proposed location. From the front door of the location to the route of normal entrance to the church is 215 feet. No other churches are in the immediate area. The proposed is closed on Sunday and during other hours no live music is provided at the location. Additionally, parking at the proposed location does not interfere with the Church activities. Considering all of the factors, the proposed location is not within an improper proximity to churches in the area.

2. Other Factors

The area near 2707-A, Business Highway 21 has no record of law enforcement intervention. No records of law enforcement officials were introduced to demonstrate the presence of incidents of crime in general occurring in or around the proposed location nor of drug activity in particular. Further, Business Highway 21 provides a proper traffic route for the proposed location and does not present a traffic problem.

Other business establishments are in the area. Next door is a video poker establishment and the overall area is characterized as primarily commercial in nature. A convenience store approximately one half mile from the proposed location holds an off-premises beer and wine permit. Additionally, a restaurant across the street holds an on-premises beer and wine permit. A former owner operated the proposed location with a beer and wine permit in 1995 for several months. During that prior operation, no citations were issued related to beer and wine violations. Accordingly, the addition of an on-premises beer and wine permit at the proposed location will not adversely change the character of the area.

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, while Mount Zion AME Church shares a property line with the proposed location, the front door of the location is 215 feet across the route of normal entrance to the church. Further, the proposed location is closed on Sunday. In addition, during other hours of the week no live music is provided at the location. From all the facts presented, no likelihood exists for noise or disturbance creating a problem for the church. Additionally, parking at the proposed location does not interfere with the church activities. Considering all of the factors, the proposed location is not within an improper proximity to 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). An additional 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). Pertinent facts are whether police been summoned to the scene on prior occasions when licensed to another party. Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). 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).

Here, the area near 2707-A, Business Highway 21 has no record of law enforcement intervention. No records of law enforcement officials demonstrate the presence of incidents of crime in general occurring in or around the proposed location nor of drug activity in particular.

Consideration can be given to the extent to which the 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, Business Highway 21 provides a proper traffic route for the proposed location and does not present a traffic problem.

A valid consideration is whether the surrounding area is substantially commercial and 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); Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Here, other business establishments are in the area. Next door is a video poker establishment and the overall area is characterized as primarily commercial in nature. A convenience store approximately one half mile from the proposed location holds an off-premises beer and wine permit. Additionally, a restaurant across the street holds an on-premises beer and wine permit. A former owner operated the proposed location with a beer and wine permit in 1995 for several months. During that prior operation, no citations were issued related to beer and wine violations. Accordingly, the addition of an on-premises beer and wine permit at the proposed location will not adversely change the character of the area.

A relevant factor is whether in the recent past beer and wine have been sold at the same location by former owners and whether the evidence shows that the location is now any less suitable than during the former time period. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, a former owner operated the proposed location with a beer and wine permit in 1995 for several months. During that prior operation, no citations were issued related to beer and wine violations.

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 demonstrate the location is improper for a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1997). Accordingly, Sanders's application seeks an on-premises beer and wine permit for a location that is a proper location.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

DOR is ordered to grant Paul D. Sanders, Sr.'s application for an on-premises beer and wine permit at 2707-A, Business Highway 21, Fort Mill, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 13, 1998

Columbia, South Carolina