SC Administrative Law Court Decisions

Annie Y. Holliday (Holliday) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 6615-A Young Street, Rembert, South Carolina. Protests were filed by Tommy R. Mims, Sheriff of Sumter County and several citizens living in the Rembert area, all of whom are represented by John W. Rabb, Jr., Esquire. The protestants seek an order denying the requested permit.

In examining this matter, not all of the requirements for obtaining a beer and wine permit are disputed. No evidence demonstrated that the applicant and any of the applicant's agents, employees, and servants who will be employed on the licensed premises lack 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 her 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, the granting or denying of the permit turns upon the disputed matter of whether Holliday 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). Having considered all of the evidence and relevant factors, the on-premises beer and wine permit must be denied.

Does Holliday 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

Holliday asserts she 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 26, 1998, Holliday filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 122242 and the applicant as well as the location were investigated by SLED. Following the notices posted by SLED and by the applicant, Tommy R. Mims, Sheriff of Sumter County and John W. Rabb, Jr., Esquire as the representative of several citizens in the Rembert area, challenged the application. The hearing for this dispute was held Thursday, September 24, 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 6615-A Young Street, Rembert, South Carolina. The type of business to be conducted at the location is not well defined. The application asserts Holliday will operate a grill and a convenience store with business hours of 5:00 p.m. to 11:30 p.m. on Thursday, Friday and Saturday. Further, the facility will also operate as a social club for weddings, reunions and party functions.

B. Specific Facts of Location

1. Statutory Proximity Factors

The closest residence to the location is reached at 48 feet to the residence's property line and 125 feet to the front door of the residence itself. A second residence is 236 feet. A third residence is across the street from the proposed location at a distance of approximately 250 feet. A fourth residence is approximately 300 feet away. From most of these houses, the proposed location's building is visible but at least one highway and an open field separate three of the residences from the proposed location. Beyond the immediate vicinity, no fewer than twenty and possibly as many as fifty homes are within one half mile radius of the proposed location. Within this rural and residential area, the location's hours of operation will be from 5:00 p.m. to 11:30 p.m. on Thursday, Friday and Saturday.

At least one resident who lives within close proximity to the proposed location suffers from a medical condition which is exacerbated by excessive noise. Excessive noise has been produced by the location on prior occasions and has resulted in police intervention.

2. Other Factors

Traffic in the area is not a limiting factor since James Street and Young Street provide adequate traffic routes for the proposed location. Further, the proposed location of 6615-A Young Street, Rembert, South Carolina is in an area primarily classified as rural in nature. Likewise, the evidence does not demonstrate the presence of crime in the area or the inappropriate presence of children.

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).

In this case, no proximity concerns exist as to churches, schools, or playgrounds since none are in the immediate area. However, the proximity of the proposed location to residences in the area warrants denying the requested permit.

A denial of a permit is supported by finding an area is characterized as both rural and residential. 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 both rural in nature and presents a residential character. Indeed, the immediate vicinity has at least four homes in close proximity with one home's property line only 48 feet from the proposed location.

Further, a location is improper if the establishment will adversely affect the public interest, the welfare of the inhabitants of the area, or the nature of the neighborhood due to the manner in which the establishment will conduct its activities. 48 C.J.S. Intoxicating Liquors § 121 at 501 (1981). Here, the conducting of activities at Sweet Things demonstrates an incompatibility of the location with the nearby residential area. Excessive noise has been demonstrated even in the short period for which the building has been used for social functions. See Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985) (a building was denied a permit and license due to operating with excessive noise near residences). Accordingly, considering the overall nature of the area in which the beer and wine permit will be used, the area is a residential community in rural Sumter County which is unsuitable for an on-premises beer and wine permit due to an inappropriate proximity to residences in the area.

3. Location Factors: Other

The permit here is also denied for other factors as well. A proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon law enforcement. Will granting the permit place a strain upon police to adequately protect the community? Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). Is there already insufficient police coverage? Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

In this case, the Sumter County Sheriff operates a substation approximately one half mile from the proposed location. However, the station is not manned twenty-four hours a day and coverage on a daily basis is only sporadic. Further, demands upon police protection are already significant. In 1995 a drug related shooting occurred on Young Street and, while no drug related activity is present at the specific location which Holliday seeks to use, drug related activity continues to occur in the area. On the whole, the addition of another location that will provide beer and wine for on-premises consumption in a rural area presents an undue strain upon existing police coverage.

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 in the area. Further, law enforcement considerations present concerns that prevent Holliday from meeting the statutory requirements for a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1997). Accordingly, Holliday's application seeks an on-premises beer and wine permit for a location that is an improper location.

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

DOR is ordered to deny Annie Y. Holliday's application for an on-premises beer and wine permit at 6615-A Young Street, Rembert, South Carolina.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

Dated: September 28, 1998

Columbia, South Carolina