South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
Tony M. McCaslan vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Tony M. McCaslan

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
98-ALJ-17-0525-CC

APPEARANCES:
Petitioners & Representative: Tony M. McCaslan, Pro Se

Respondents & Representative: South Carolina Department of Revenue, Arlene D. Hand, Esquire

Parties Present: Petitioner present, Respondent excused, Protestant present.
 

ORDERS:

FINAL ORDER AND DECISION

I. Statement of the Case


Tony M. McCaslan (McCaslan) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 142 Tugaloo Street, Calhoun Falls, South Carolina. A protest was filed by Reverend Jerry W. Dalton 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 McCaslan 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 with a restriction as to parking in front of the proposed location.

II. Issue


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

III. Analysis


1. Positions of Parties

McCaslan 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. Reverend Dalton, 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 4, 1998, McCaslan filed an application with the Department of Revenue for an on-premises beer and wine permit. The application is identified by DOR as AI # 122241. 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 Dalton challenged the application and presented this controversy. The hearing for this dispute was held Thursday, November 5, 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 142 Tugaloo Street, Calhoun Falls, South Carolina. The business is a billiards parlor with business hours of Wednesday through Saturday, 7:00 p.m. until midnight or later.







B. Specific Facts of Location

1. Statutory Proximity Factors

Proximity to churches, residences, schools and playgrounds are relevant to the issue under review. In this case, no residences, schools, or playgrounds are in the immediate area.

However, two churches are in the area. Northside Baptist Church is two tenths of a mile from the proposed location and First Baptist Church of Calhoun Falls is four tenths of a mile from the proposed location. No other churches are in the immediate area. The proposed location's building is not visible from either Northside Baptist Church or First Baptist Church. Additionally, the time of operation of the proposed location is Thursday through Saturday, 7:00 p.m. to midnight or later but with no operating hours on Sunday. Considering all of the factors, the proposed location is not within an improper proximity to churches in the area.

2. Other Factors

No issue in this case involves crime in the area or the need for police coverage. Rather, no evidence of crime in the area was presented at the hearing. In addition, the police station is directly across the street from the proposed location. Accordingly, the impact upon coverage by law enforcement is not a negative factor in this case, but rather, is a circumstance weighing in favor of granting the permit.

Some concerns exist as to the traffic hazard potentially created by the proposed location. Parking directly in front of the proposed location is available for only two vehicles. The parking of additional vehicles at the front of the location will present an obstacle to traffic along Tugaloo Street.

However, the applicant has access to additional parking. A vacant lot beside the proposed location will accommodate an additional five to six vehicles. An area across the street provides a space for approximately six more vehicles. Finally, a lot above the proposed location approximately sixty feet away will provide parking for ten to fifteen vehicles. When considered as a whole, the parking is adequate so long as no more than two vehicles are allowed to park in front of the proposed location.

The area is a commercial area. Across the street from the proposed location is the Calhoun Falls Police Department and nearby is a finance company. Next door to the proposed location is an ABC Package store. Overall, the area is primarily commercial in nature. Consistent with the commercial nature of the area, no evidence exists of the presence of children in any significant degree.

The area has two establishments that hold off-premises beer and wine permits: Hickory Point Convenience store approximately 1200 feet from the proposed location and Cherokee Trail Convenience store approximately 1500 feet away. In addition, an ABC Package store is next door to the proposed location. Thus, 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, no residences, schools, or playgrounds are in the immediate area. While two churches are in the area, both are a significant distance from the proposed location. Northside Baptist Church is two tenths of a mile from the proposed location and First Baptist Church of Calhoun Falls is four tenths of a mile from the proposed location. Further, the proposed location's building is not visible from either Northside Baptist Church or First Baptist Church. Additionally, the time of operation of the proposed location is Thursday through Saturday, from 7:00 p.m. to midnight or later but with no operating hours on Sunday. Thus, the hours of operation will have little or no overlap with the normal hours of worship on Wednesdays and Sundays. 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). Here, no evidence indicates a strain on police protection. No evidence of crime has been demonstrated and the police station is immediately across the street.



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, the area is unquestionably commercial in nature. Likewise, 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). The commercial nature does not lend itself to a high degree of presence of children.

Consideration should also 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). Here, Hickory Point Convenience store is approximately 1200 feet from the proposed location and Cherokee Trail Convenience store is approximately 1500 feet away with both locations holding beer and wine permits. In addition, an ABC Package store is next door to the proposed location. Thus, the addition of an on-premises beer and wine permit at the proposed location will not adversely change the character of the area.

Finally, when required, it is appropriate to impose restrictions. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1997); 23 S.C. Code Regs. 7-88 (1976).

When considered as a whole, the location must be restricted to the parking of two vehicles in front of the proposed location. A legitimate concern is the extent to which a location 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 evidence establishes that parking is limited in front of the proposed location. In fact space is available for only two vehicles without presenting an obstruction to traffic. However, parking is adequate for his location since the applicant has access to additional parking: six vehicles can park in a vacant lot beside the proposed location, six more vehicles can park in area across the street, and ten to fifteen vehicles can park in a lot approximately sixty feet away. When considered as a whole, the parking is adequate so long as no more than two vehicles are allowed to park in front of 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 require denying the on-premises beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1997). However, the permit can be granted only with a restriction that no more than two vehicles may be parked in front of the proposed location. Accordingly, as restricted, McCaslan's application seeks an on-premises beer and wine permit for a location that is a proper location.

IV. Order


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

DOR is ordered to grant Tony M. McCaslan's application for an on-premises beer and wine permit at 142 Tugaloo Street, Calhoun Falls, South Carolina so long as McCaslan and DOR enter a restriction on the permit stating that no more than two vehicles may be parked in front of the location during any hours the location is open for business.



AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 9, 1998

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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