SC Administrative Law Court Decisions

Gladys S. Robinson (Robinson) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 383 Railroad Avenue, Wagener, South Carolina. A protest was filed by Joann Johnson 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 Robinson 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.

Does Robinson 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

Robinson asserts she meets the statutory requirements. DOR states it would have granted the permit but for the filing of a protest asserting the location is improper. Accordingly, DOR awaits the outcome of this hearing. 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 June 15, 1998 Robinson filed an application with the Department of Revenue for an on-premises beer and wine. The application is identified by DOR as AI # 122162. 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, Joann Johnson challenged the application and presented this controversy. The hearing for this dispute was held Wednesday, November 4, 1998, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestant.

The proposed business (and the place where the beer and wine permit will be utilized) is located at 383 Railroad Avenue, Wagener, South Carolina. The business is a pool room selling snacks and sandwiches with business hours of Monday through Wednesday, 11:00 a.m. until 9:00 p.m. and Thursday through Saturday 11:00 a.m. until 12:00 midnight. The operation will provide 20 parking spaces and the location will not provide live music.

B. Specific Facts of Location

1. Statutory Proximity Factors

Saron Baptist Church is approximately 350 feet from the proposed location. However, no other churches are in the immediate area. Additionally, the proposed location is not open for business during normal Sunday morning or evening worship services. Further, the proposed location does not provide live music. Considering all of the factors, the proposed location is not within an improper proximity to the church.

The closest residence is across the street from the proposed location at a distance of 180 feet and an approximately twenty additional residences are within 1000 feet of the proposed location. From many of the residences the proposed location's building is visible. However, most of the residences are separated from the proposed location by a major traffic artery. Considering the overall nature of the area in which the beer and wine permit will be used, the area is a mixture of commercial and residential establishments. Considering, the proposed location as a whole, the beer and wine permit will not be within an improper proximity to residences in the area.

2. Other Factors

Records of law enforcement officials show no incidents of crime occurring in and around the area near 383 Railroad Avenue, Wagener, South Carolina. Additionally, no evidence from law enforcement investigations establish the presence of drug activity in the area. Further, traffic at the Railroad Avenue location does not present an impediment to ingress or egress for the proposed location.

The area is home to another commercial establishment which is approximately 150 feet from the proposed location. The other commercial establishment is retail liquor store. The addition of an on-premises beer and wine at the proposed location will not adversely change the character of the area. In fact, the proposed location was previously operated with a beer and wine permit from 1976 until 1996. During that twenty year period, no testimony establishes the existence of any violation of the beer and wine laws or violations of any criminal statutes. In fact, during the prior operation, no citations were issued related to beer and wine.

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, Saron Baptist Church is approximately 350 feet from the proposed location and no other churches are in the immediate area. The proposed location is not open for business during normal Sunday morning or evening worship services and the proposed location does not provide live music. Under all of the factors of this case, the proposed location is not within an improper proximity to the church.

The same is true as to residences. The closest residence is across the street from the proposed location at a distance of 180 feet. While approximately twenty residences are within 1000 feet of the proposed location, most of the residences are separated from the proposed location by a major traffic artery. Further, at least one other commercial establishment is in the area. Considering the overall nature of the area in which the beer and wine permit will be used, the area is a mixture of commercial and residential establishments. Considering the proposed location as a whole, the beer and wine permit will not be utilized within an improper proximity to residences in the area.

3. Location Factors: Other

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). Pertinent facts would include whether police have 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). Additionally, 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, the records of law enforcement officials show no incidents of crime occurring in and around the area near 383 Railroad Avenue, Wagener, South Carolina. Additionally, the law enforcement record shows no investigations establishing the presence of any drug activity in the area. Further, traffic at the Railroad Avenue location does not present an impediment to ingress or egress.

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). In addition. 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, the area has another commercial establishment which is approximately 150 feet from the proposed location with the other commercial establishment being a retail liquor store. The addition of an on-premises beer and wine permit at the proposed location will not adversely change the character of the area. In fact, the proposed location was previously operated with a beer and wine permit from 1976 until 1996. During that twenty year period, no violation of the beer and wine laws or violations of any criminal statutes were proven. In fact, during the prior operation, no citations were issued related to beer and wine.

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, a consideration of other location factors establish that the proposed location is not an improper location for obtaining a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1997). Accordingly, Robinson'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 Gladys S. Robinson's application for an on-premises beer and wine permit at 383 Railroad Avenue, Wagener, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 5, 1998

Columbia, South Carolina