SC Administrative Law Court Decisions

Bill J. Harrison (Harrison) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 2734 Ira Kinard Road, Prosperity, South Carolina. However, by a letter from the applicant dated May 11, 1998, Harrison withdrew his request for an on-premises beer and wine permit and instead seeks an off-premises permit. Protests seeking to prevent DOR from granting the application were filed by Jerry Wright of the Newberry Sheriff's Department, Butch and Beth Mowder, Robert and JoAnn Hooks, Vaughn R. Parfitt, and Robert E. Parfitt.

This dispute does not challenge all of the requirements for obtaining a beer and wine permit. No dispute exists that the applicant has that degree of moral character needed for a beer and wine permit. 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). Finally, 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). Rather than a dispute involving all of the requirements for a beer and wine permit, the granting or denying of the permit in this case turns upon the disputed matter of whether the location at which the permit will be utilized is 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). The evidence and relevant factors require granting the off-premises beer and wine permit.

Does Harrison 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

Harrison asserts the location is proper. 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 20, 1998, Harrison filed an application with the Department of Revenue for an on-premises permit but on May 11, 1998, amended his application to seek an off-premises beer and wine permit. The application is identified by DOR as AI # 121222. 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, Jerry Wright of the Newberry Sheriff's Department, Butch and Beth Mowder, Robert and JoAnn Hooks, Vaughn R. Parfitt, and Robert E. Parfitt challenged the application and presented this controversy. The hearing for this dispute was held Friday, September 25, 1998, in Newberry 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 2734 Ira Kinard Road, Prosperity, South Carolina. The business is a convenience store with business hours of Monday through Saturday, 7:00 a.m. until 7:00 p.m. (closed Sunday).

B. Specific Facts of Location

1. Statutory Proximity Factors

No schools or playgrounds are in the immediate area. Likewise, no church is in the immediate area since the closest church, Mt. Mariah Church, is approximately one mile from the proposed location.

Further, the closest residences to the proposed location are two mobile homes across from Harrison's proposed location with the mobile homes at distances of approximately 450 feet. The two mobile homes are owned by Harrison and are used as rental property. Other than from the two rental properties owned by Harrison, the proposed location is not visible to residences in the area.

Outside of the immediate area is a subdivision identified as Arlington Way which is approximately .3 of a mile from the proposed location. Additionally, two other subdivisions are at further distances of .5 of a mile (Blacksgate East) and one mile (Bedford Way).

Considering the overall nature of the immediate area in which the beer and wine permit will be used, the area is primarily rural. On the whole, the immediate area surrounding the proposed location consists predominately of vacant land with an occasional residence. Beyond the immediate area are further vacant land as well as residential subdivisions.

2. Other Factors

The area is not a problem site due to past criminal activity. Indeed, the area has a lack of criminal acts. The Sheriff's office of Newberry County provides adequate police protection and provides a response time sufficient to provide coverage to the area. No police investigations demonstrate a problem with loitering at the proposed location and no reports identify a problem with automobile accidents at the proposed location. Further, no police documentation exists of drug activities at or near the proposed location.

Ingress and egress to the proposed location is adequate. Ira Kinard Road and Lake Road are both paved highways providing direct access to the proposed location. Further, the parking at the proposed location is adequate to handle traffic.

The proposed location holds the required business licenses for operation. In addition, no evidence shows a prohibition under Newberry County's zoning ordinances or planning restrictions which would prohibit the proposed business.

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).

However, no distance is set by statute for determining when a proposed location is within an improper proximity to residences, churches, schools, and playgrounds. William Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Rather, each case must be decided on its own facts. See Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (residence 72 feet from proposed location was a factor in denying beer and wine permit).

Here, two residences are in the immediate area. However, the residences are rental properties owned by Harrison and are approximately 450 feet from the proposed location. The next closest residence is a subdivision known as Arlington Way, .3 of a mile from the proposed location. Additionally, two other subdivisions are at further distances of .5 of a mile (Blacksgate East) and one mile (Bedford Way). The operating hours of the proposed location do not extend past midnight and generally end at approximately 7:00 p.m. Such hours are not incompatible with the rest and sleep hours associated with residential living.

3. Location Factors: Other

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). While some concern exists that the roads which access the proposed location are narrow, the evidence establishes that both Ira Kinard Road and Lake Road are paved highways adequate for the traffic of the area. Additionally, parking at the proposed location as well as ingress and egress to the location are adequate for the business. Indeed, no persuasive evidence in this record establishes that the access to the location creates a traffic hazard or that parking will be inadequate.

Likewise, law enforcement concerns are relevant. 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); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

No evidence of a strain on law enforcement is presented here. The Sheriff's office of Newberry County has an adequate staff to cover the proposed location. Such is especially true in that the location is not seeking an on-premises consumption permit but rather an off-premises permit.

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). Here, the permit is an off-premises permit. Thus, the location will not allow consumption on the premises and will not present a public intoxication concern.

Pertinent facts are whether police have been summoned to the scene on prior occasions. Schudel v. S.C. Alcoholic Beverage Control Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981). Additionally, 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, no evidence exists that crime is a factor in this area. Indeed, no police incidents have been found for the proposed location.

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 present the proposed location as being an improper location for a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1997). Accordingly, Harrison's application for an off-premises beer and wine permit must be granted.

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

DOR is ordered to grant Bill J. Harrison's application for an off-premises beer and wine permit at 2734 Ira Kinard Road, Prosperity, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 5, 1998

Columbia, South Carolina