ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Nigual M. Gore, J&C Investment, d/b/a B&B Superette (Gore) filed with the South Carolina
Department of Revenue (DOR), an application for an off-premises beer and wine permit for 800
Hwy. 378, Conway, South Carolina. A protest was filed by Gary C. Mitchell, Chief of Police of
Conway, 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 requires deciding whether Gore's location 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.
II. Issues
Does Gore meet the requirements for an off-premises beer and wine permit in light of an allegation
that the location is improper?
III. Analysis
1. Positions of Parties
Gore asserts he meets the statutory requirements. DOR states it would have granted the permit but
for the filing of the protest 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 January 28, 1998 Gore filed an application with the Department of Revenue for an off-premises beer and wine permit. The application is identified by DOR as AI # 119611. 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, Gary
C. Mitchell, the Chief of Police of Conway, challenged the application and presented this
controversy. The hearing for this dispute was held Tuesday, December 15, 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
800 Hwy. 378, Conway, South Carolina. The business is a convenience store with business hours
of 7:00 a.m. until 10:00 p.m. Monday through Saturday.
B. Specific Facts of Location
1. Statutory Proximity Factors
Cherry Hill Baptist Church is approximately 300 feet from the proposed location. The testimony
does not identify other churches in the immediate area. The normal activities of the church do not
conflict with the operation of the proposed location. The proposed location will be closed on Sunday
and is not a location that provides entertainment involving music either recorded or live.
Considering all of the factors, the proposed location is not within an improper proximity to the
church.
Conway Middle School is approximately .5 of a mile from the proposed location. The line of sight
from the school is such that the proposed location is not visible to students on the campus of the
school. In addition, no other schools are in the immediate area. No evidence shows a problem of
interference with the school and the operations of the proposed location. Thus, the proposed location
is not within an improper proximity to the school.
Some residences are in the same area as the proposed location. However, the immediate area is
decidedly commercial due to the major traffic artery of Highway 378 upon which the proposed
location fronts. Considering the overall nature of the area in which the beer and wine permit will
be used, the proposed location is not within an improper proximity to residences in the area.
2. Other Factors
a. Impact Upon Police Coverage
The location at 800 Hwy. 378, Conway, South Carolina has been in operation for over ten years.
Over such a time period, the evidence demonstrates some criminal acts have occurred at the location.
However, the acts are consistent with the operation of a typical commercial establishment and do
not indicate a problem related to the sale of beer and wine. For example, the evidence identifies
driving with a suspended license, erroneous 911 calls from a pay telephone, the passing of a
counterfeit twenty dollar bill, shoplifting, and investigating a call for assistance due to a security
alarm.
Indeed, only one incident is alcohol related. An individual was found passed out in the parking lot
with his condition suspected to have resulted from alcohol consumption. However, no evidence
indicates the individual had been in the proposed location or that he had consumed beer or wine
purchased from the proposed location.
In addition, the evidence establishes that the prior owner operated the establishment with no
significant problems. Further, the likelihood of problems is diminished due to a police community
center across the street from the proposed location. The Conway police provide a meaningful
presence in the area and produce an excellent response time.
Finally, traffic control is not a significant concern. No reports of traffic accidents occurring at the
proposed location were established. The traffic artery of Highway 378 provides sufficient access for
the proposed location. Additionally, spaces for parking twenty vehicles are available with such
spaces presenting no traffic hazards.
b. Commercial Nature
The area has a significant commercial presence. The area is home to the Conway Police Department
Resource Center, Small's TV Repair, a funeral home, a florist shop, and a barber shop. The
commercial nature of the area is conducive to the proposed location. In fact, the evidence confirms
that Gore's additions and repairs to the location are significant. Current expenditures for the location
are approximately $200,000. Testimony confirms that if no consideration were given to the dispute
concerning the off-premises beer and wine permit application, Gore's establishment is an asset to
the community.
c. Existing Establishments
The area has several establishments that hold either a beer and wine permit or an alcohol license.
For example, McLeod's Snack Bar, 150 feet from the proposed location, holds an on-premises beer
and wine permit. Bellamy's Grill, at 180 feet, holds an on-premises beer and wine permit. An Exxon
station, at 250 feet, holds an off-premises permit as does the Save-Way convenience store at a
distance of 300 feet. Thus, the addition of an off-premises beer and wine permit at the proposed
location is consistent with the general character of the area.
d. Prior Operation
The proposed location has been operating under a temporary permit for a year. During that period
no significant problems have arisen. Additionally, the location was previously operated as B&B
Superette from 1988 with an off-premises beer and wine permit. During the prior operation, the only
violation was selling beer on Sunday. Gore will not be open on Sunday. Thus, no problems
identified with prior operation of the location will continue under Gore's operation.
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, the proposed location is not within an improper proximity to residences, churches, or schools.
Cherry Hill Baptist Church is approximately 300 feet from the proposed location. The normal
activities of the church do not conflict with the operation of the proposed location; the proposed
location will be closed on Sunday, and the location does not provide entertainment. Likewise,
Conway Middle School is approximately .5 of a mile from the proposed location. The proposed
location is not visible by line of sight from the school and no evidence shows a problem of
interference with the operation of the school. Finally, while some residences are in the same area
as the proposed location, the immediate area is decidedly commercial. Highway 378 presents a
commercial atmosphere for the gas station and convenience store for this proposed location. Thus,
considering the overall nature of the area in which the beer and wine permit will be used, the
proposed location is not within an improper proximity to churches, schools, or residences 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). For example, one measure of the
strain is evidence of insufficient police to cover the likely crowd that might gather at the location.
Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). In addition, the need for likely police
intervention must be examined. Pertinent facts are 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). Finally, 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 impact on police coverage does not require denying the permit. While some criminal acts
have occurred, the acts are typical of a commercial establishment unrelated to the sale of beer and
wine. Driving with a suspended license, erroneous 911 calls from a pay telephone, the passing of
counterfeit twenty dollar bills, shoplifting, and investigating a security alarm all might be
encountered at any commercial establishment. Indeed, only one incident involved alcohol.
However, that incident, which involved an individual found passed out in the parking lot, did not
have facts connecting the event to the individual having acquired beer or wine from the proposed
location.
In addition, the area is well policed and presents no traffic concerns. Across the street is police
community center and the Conway police provide a meaningful presence in the area with an
excellent response time. Finally, traffic control is not a significant concern since Highway 378
provides a sufficient access route for the proposed location. Additionally, spaces for parking twenty
vehicles are available with such spaces presenting no traffic hazards.
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, several businesses are in the area. Further, a
proper consideration is whether, absent the beer and wine permit, the establishment would be a
commercial asset to the community. Smith v. Pratt, 258 S.C. 504, 189 S.E.2d 301 (1972). Here,
the improvements made by Gore are an asset to the area.
Finally, consideration is given to whether similar businesses exist within the area and to whether the
proposed location in the recent past sold beer and wine. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d
801 (1973). Here, the area has at least four establishments that hold either a beer and wine permit
or an alcohol license. Thus, the addition of an off-premises beer and wine permit at the proposed
location is consistent with the general character of the area. In addition, the proposed location has
been operating under a temporary permit for a year without any significant problems. Likewise, the
location was previously operated as B&B Superette for over ten years with no problems that present
a concern for Gore's operation. Accordingly, the prior operations support granting the permit.
B. Ultimate Conclusion as to Location
The proposed location is not within an improper proximity to residences, schools, churches, and
playgrounds. Further, other location factors do not require denying the beer and wine permit. S.C.
Code Ann. § 61-4-520 (Supp. 1997). Accordingly, Gore's proposed location 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 to Nigual M. Gore, J&C Investment, d/b/a B&B Superette's an off-premises
beer and wine permit at 800 Hwy. 378, Conway, Horry County, South Carolina.
AND IT IS SO ORDERED.
RAY N. STEVENS
Administrative Law Judge
Dated: December 21, 1998
Columbia, South Carolina |
