SC Administrative Law Court Decisions

The Petitioner, Paresh K. Patel, Sunshine Grocery, Inc., d/b/a Gateway Liquor III (Patel) of Sumter, South Carolina, filed with the South Carolina Department of Revenue (DOR), the Respondent, an application for a retail liquor store license for 378-B Manning Avenue, Sumter, South Carolina. Numerous individuals filed protests, and the City of Sumter intervened seeking to prevent DOR from granting the license. The filing of such protests requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. § 61-2-260 (Supp. 1997).

In this matter, not all of the requirements for obtaining a retail liquor license are disputed. No dispute exists on whether Patel exceeded three liquor licenses (§ 61-6-140), is at least twenty-one years old (§§ 61-2-100(C) and 61-6-110), is a legal resident (§ 61-6-110), is of good repute and a suitable person (§§ 61-6-110 and 61-6-910), has had any revocations or suspensions (§§ 61-6-110 and 66-2-140(E)), is delinquent in paying taxes (§ 61-2-160), or has failed to provide proper notice (§ 61-6-180). Rather, the dispute concerns whether the location is within three hundred feet of a church. The evidence and applicable law require denying the license.

Is Patel's proposed location for a liquor license within three hundred feet of a church?

1. Positions of Parties:

DOR states that the filing of the protests prevents the granting of the license until a hearing is held. Thus, while DOR expresses no opposition to the license, it has taken no further action on the matter pending the outcome of the hearing required by the protestants.

The protestants and the City of Sumter argue the license is prohibited by law since the proposed location is within three hundred feet of a church. See § 61-6-120. Patel argues the church is beyond three hundred feet and thus his license is not prohibited by law.

2. Findings of Fact:

I find, by a preponderance of the evidence, the following facts:

On or about August 19, 1998, Patel filed an application with DOR for a license to operate a retail liquor store. The proposed liquor store, and the place where the license will be utilized, is located at 378-B Manning Avenue, Sumter, South Carolina. DOR began an investigation of the application which it identified as AI 123115. In this case, the disputed facts relate to whether the 378-B Manning Avenue location is a proper distance from protected institutions.

A proper location requires a sufficient distance from nearby churches. In this case, a nearby church is that of Jehovah Baptist Church. Thus, the setting and the normal route of travel from Patel's proposed location to the church are pertinent to this case.

The proposed location is within a building housing two businesses. If facing Manning Avenue while standing in the front door of the proposed location, on the left is a convenience store and on the right is a coin operated car wash. The middle space between the two existing businesses will house the proposed liquor store.

Upon leaving the front door of the proposed location, a patron must travel an unspecified distance across Patel's parking lot before reaching Manning Avenue. While the distance from the front door to Manning Avenue is not affirmatively stated, the testimony and evidence in the case allow a finding that the distance is no more than seventy-five feet. Once at Manning Avenue, continuing by vehicular traffic, a right turn onto Manning Avenue proceeds toward Jehovah Baptist Church. Before entering Manning Avenue and while remaining on Patel's property, the distance to the church's property at the corner of Manning Avenue and Royal Avenue is approximately 72 feet. The distance to the unfinished building itself (which is now under construction at that corner) identified as the Family Life and Child Development Center is approximately 100 feet.

After entering Manning Avenue and upon arriving at the corner of Manning Avenue and Royal Avenue, a left turn on Royal Avenue moves one closer to the entrance to the grounds of the church property. Proceeding down Royal Avenue, the first entrance to the church grounds is a driveway on the right side of Royal Avenue. That driveway provides access to the Family Life and Child Development Center now under construction. The distance from the entrance to Patel's parking lot on Manning Avenue to the first entrance to the grounds of the church on Royal Avenue is 188 feet.

Continuing down Royal Avenue, vehicular traffic encounters the intersection of Royal Avenue and Harvin Street. Turning right onto Harvin Street presents, on the left, an entrance to the grounds surrounding the sanctuary of Jehovah Baptist Church. The distance from the entrance to Patel's parking lot on Manning Avenue to the entrance to the grounds of Jehovah Baptist Church's sanctuary on Harvin Street is 420 feet by vehicular traffic.

As the above suggests, while the sanctuary of the church is on Harvin Street, the property of the church covers at least three areas: Harvin Street, Manning Avenue, and the connecting property between Harvin Street and Manning Avenue.

The Harvin Street area contains the sanctuary and educational facilities. In that facility the church conducts religious services of worship in its sanctuary and carries out a ministry in Child Development services for approximately eighty-five children.

The Manning Avenue property begins at the corner of Manning Avenue and Royal Avenue and occupies an area of unspecified but significant dimensions. The property has been used as a part of the church's religious services in its child development ministry for a number of years. For example, for five years prior to July 1998, the property depicted on the investigating SLED Agent's map as the Jehovah Child Care Center was used for recreation by the church's Child Development Center. During that five-year period, in addition to recreation equipment, the property contained a building used in the ministry. Further, beginning with a building permit in March 1998 and continuing with the ground breaking construction in July 1998, the church's child development ministry is constructing a facility that will produce a $1.3 million Family Life Center and expansion of the current Child Development Center. In fact, while the church's existing facilities provide Child Development services for approximately eighty-five children, the expansion will accommodate approximately two hundred children. The facility is currently fifty percent complete and will be completed for occupancy in the spring of 1999.

Finally, the church owns property connecting the Harvin Street area with the Manning Avenue area. The connecting property provides access from the sanctuary and education facilities on Harvin to the now-under-construction Family Life and Child Development Center on Manning Avenue.

3. Conclusions of Law

The dispute here requires deciding whether the location is within three hundred feet of a church. Thus, measurements of the distance from the proposed business to the church are required.

A. Distance to Church Analyzed

For a business that will be located within a municipality (as is the case here), no license can be granted if the proposed location is within three hundred feet of a church. § 61-6-120(A) (Supp. 1997). Thus, applying the statute requires two determinations. Where is the "church" located? What is the distance to the church from the proposed location?

1. Church Location

As identified in the finding of facts, the property of the church covers three areas with two areas being the most predominate: Harvin Street and Manning Avenue.

No serious doubt exists that the Harvin Street property is a part of the church. The sanctuary and educational facilities are housed there, and religious services are held on the premises. However, a more difficult question is presented by the Manning Avenue property.

To apply the rule of three hundred feet to the Manning Avenue property, that property must be within the term "church." The term is defined by statute as "an establishment . . . where religious services are usually conducted." § 61-6-120(A) (Supp. 1997). Based primarily upon three considerations, the Manning Avenue property is a part of the church's property for purposes of measuring the three hundred feet required by S.C. Code Ann. § 61-6-120 (Supp. 1997).

First, and most fundamentally, the church owns the property. No testimony attempts to dispute the ownership of the property and no facts cast doubt on such a conclusion.

Second, statutes that seek to protect identified institutions from the sale of alcohol in their immediate proximity give rise to a duty to liberally construe the provisions in favor of the protected institution. See In re Transfer of Restaurant Liquor License, 22 Cambria C.R. 126 (Pa. Com. Pl. 1961) (Section 404 of the Liquor Code, Act of 1951, April 12, P.L. 90, Article IV, 47 P.S. S 4-404, was intended to discourage the existence of places where alcoholic beverages are dispensed when they would be in the near vicinity of certain restrictive institutions and the duty of the court is to liberally construe this section for the accomplishment of that purpose); Appeal of 425-429, Inc., 116 A.2d 79, 83 (Pa. Super.1 955) ("Clearly, the policy of the legislature was to discourage the sale of liquor in close proximity to the restrictive institution and we must therefore interpret the provisions of the Act in a light most favorable to the accomplishment of that purpose."). Accordingly, a liberal meaning of the phrase "an establishment . . . where religious services are usually conducted" is warranted.

Third, the facts demonstrate the property is used for church purposes. Here, the property has been used as a part of the church's ministry for Child Development for a number of years as a recreational center for children. Currently the site is the location of the Family Life and Child Development Center now under construction.

Accordingly, both the Harvin Street property and the Manning Avenue property constitute the "church" for purposes of measuring distances.

2. Accomplishing the Measurement

Having found the Harvin Street property and the Manning Avenue property to be property of the church for purposes of S.C. Code Ann. § 61-6-120, the next step is applying the required method of measurement. S.C. Code Ann. § 61-6-120 (Supp. 1997). Applying the measurement requires determining the beginning point of the measurement, marking the route over which the measurement must be made, and selecting the ending point of the measurement.

a. Beginning Point

The beginning point of the measurement is the "the nearest entrance of the place of business." S.C. Code Ann. Regs. 7-55. Under the facts of this case, since the proposed location has only one front entrance, the beginning point must start at the front door of the proposed location. Here, no testimony expressly states the distance from the front door to Manning Avenue. However, the testimony and evidence in the case suggest a finding that the distance is no more than seventy-five feet. Photographs show the front of the proposed location with such photos taken from the street as well as across the street.

b. Shortest Route

Once having found the beginning point of the measurement, the next consideration is how to mark the route from the proposed location to the church. The route is that which is "the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare." S.C. Code Ann. § 61-6-120.

Under such a directive, here, the route of public thoroughfare is onto Manning Avenue and then onto Royal Avenue which leads past the grounds entrance to the Family Life and Child Development Center. The ground entrance to the Family Life and Child Development Center is on Royal Avenue. Near the corner of Royal Avenue and Harvin Street is the church sanctuary and educational facilities. Access to the grounds of the sanctuary is on Harvin Street.

c. Ending Point Analyzed

The final task is deciding the ending point. That task is hindered by several ambiguities in the controlling regulation.

Regulation 7-55 states the ending point is measured "to the nearest point of entrance to the grounds of the church or school, or any building in which religious services or school classes are held, whichever is the closer." The "whichever is closer" language uses the comparative form of "close" ("closer") and not the superlative form ("closest"). Thus, the intent is to compare only two potential end points, not three or more. An ambiguity arises due to the uncertainty in identifying which two end points must be compared.

One view is that the phrase "to the grounds of" modifies both "church" and "any building." Under that view, the end points to be compared are the distance to the grounds of the "church" versus the distance to the grounds of "any building in which religious services are held." Such a view is improper since it creates a redundancy and leads to an absurd result. See Gregory v. South Carolina Democratic Executive Comm. 71 S.C. 364, 247 S.E.2d 439 (1978) (where the Legislature would not have used the term "properly signed" if "properly" did not refer to "witnessing" since any other reading would be "redundant."); Hamm v. S.C. P.S.C., 287 S.C. 180, 336 S.E.2d 470 (1985) (an interpretation of a term is not favored if that interpretation leads to an absurd result).

The interpretation that the phrase "to the grounds of" modifies both "church" and "any building"leads to a redundancy. Indeed, the word "church" is defined by statute as meaning "an establishment . . . where religious services are usually conducted." S.C. Code Ann. § 61-6-120(a) (Supp. 1997). Thus, the suggested interpretation would compare the distance to the grounds of the church with the distance to the grounds of "an establishment . . . where religious services are usually conducted", i.e., virtually the same as the definition of "church." Accordingly, such an interpretation compares the grounds of the church to the grounds of the church, both a redundancy and an absurd result.

A second, and proper interpretation, is that the potential end points to be compared are the distance to "the nearest point of entrance to the grounds of the church" (the grounds measurement) and the distance to "any building in which religious services . . . are held" (the building measurement). Measuring to a physical building presents no redundancy, gives no absurd result and, in addition, is not an uncommon measurement imposed by states with similar statutes. See Boy's Clubs of Detroit v. Pakula, 69 N.W.2d 348, (Mich. 1955) (Michigan statute required measurements to any part of a building (school or church) closest to the proposed liquor license location); Taylor Drug Stores, Inc. v. Indiana Alcoholic Beverage Commission, 497 N.E.2d 932 (Ind. App. 1986) (measurement made to outside wall of the church).

Having decided that a comparison under the grounds measurement and the building measurement is necessary to determine the ending point for applying the three hundred foot rule, the task is to compute the distance for each. Regulation 7-55 provides meaningful instruction but that instruction again leads to an ambiguity. The ambiguity results from the lack of a definition of the term "building" in reference to a building that is not yet fully complete.

i. Problem of Unfinished Building

The unfinished building in this case is the Family Life and Child Development Center building. The lack of a clear meaning for the term "building" impacts both the grounds measurement and the buildings measurement.

Under the grounds measurement requirement of Regs. 7-55, measuring "to the nearest point of entrance to the grounds of the church" requires the presence of a building.

[The grounds measurement relies upon] the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or buildings and does not extend to the grounds surrounding the church which may be used for beautification, cemeteries, or any purpose other than such part of the land as is necessary to leave the public thoroughfare and to enter or leave such building or buildings. (Emphasis added).

While the Manning Avenue property provides an entrance to church grounds on Royal Avenue and while that entrance provides ingress and egress to the Family Life and Child Development Center building, that building is not yet complete. Can the term "building" within Regs. 7-55 include an unfinished building?

Continuing in the same vein, the unfinished nature of that building also has an impact on the building measurement. The building measurement must be made to "any building in which religious services . . . are held." For purposes of the building measurement, is an unfinished building within the meaning of the term "building?"

ii. Application of Law and Facts To Unfinished Building

An unfinished building is within the meaning of the term "building" as used in Regs. 7-55 so long as the building under review is fifty percent or more complete. At least four reasons support this conclusion.

First, the rules of statutory construction require such a conclusion. Regulation 7-55 is ambiguous due to its lack of definition of "building." For example, is a building not a "building" if it is in any degree unfinished? How complete must a "building" be: foundation established, exterior walls and roof completed, building inspector's final approval granted, etc.?

Given such an ambiguity, the construction which best carries out the intent of the provision under review must be applied since the primary function of courts in interpretation is to ascertain the intent of the legislature. Multi-Cinema, Ltd. v. South Carolina Tax Commission, 292 S.C. 411, 357 S.E.2d 6 (1987). In finding that intent, a liberal construction in favor of the protected institution should be given weight. See In re Transfer of Restaurant Liquor License, 22 Cambria C.R. 126 (Pa. Com. Pl. 1961); Appeal of 425-429, Inc., 116 A.2d 79, 83 (Pa. Super. 1955). Finally, and in all events, the construction given should be consistent with the purpose and policy of the statute. Hay v. S.C. Tax Commission, 273 S.C. 269, 255 S.E.2d 837 (1979).

While our General Assembly and our case law have not plainly articulated the purpose of the three hundred foot limitation, other jurisdictions have. See Food Town, Inc. v. Town of Plaquemine, 129 So.2d 877 (La.App. 1st Cir.1961) ("The purpose is to permit governing bodies to prohibit such places within the prescribed distance in order that persons in or entering those protected places will neither have ready access to businesses selling alcohol nor be subjected to viewing or participating in incidents which frequently occur in and around premises where intoxicating beverages are sold."); State ex rel. Yung Sing v. Permenter, 59 So.2d 773, 774 (Fla. 1952) ("Its primary objective is to remove the atmosphere of an establishment wherein intoxicating beverages are sold a reasonable distance from a church, . . . because the milieu of such a place is considered inimical to the best interests and welfare of those who attend church, . . . ."); Carter Metropolitan Christian Methodist Episcopal Church v. State, 308 N.W.2d 677, 681 (Mich.App. 1981) (". . . it was the express intent and purpose of the legislature in enacting section 17a of the liquor law to protect the churches and schools of the State from any detriment stemming from the conduct of a liquor business within the immediate vicinity of those institutions."). Thus, the purpose of South Carolina's distance limitation is the same as that of similar statutes and that purpose is to protect the identified institutions from both the perceived as well as real intrusions associated with alcohol.

Given a purpose and intent to protect churches from the presence of liquor within three hundred feet and given a preference for a liberal construction in favor of the protected institution, a building will exist for purposes of the grounds measurement and the buildings measurement if the building is at least fifty percent complete.⁽¹⁾

Second, and as alluded to in the statement above, the facts of this case present a building that is fifty percent complete. The foundations have been laid, the steel infrastructure has been completed and exterior walls and floors are now being installed. The testimony confirms that the building is fifty percent completed and will reach full completion in the spring of 1999. No persuasive evidence supports a contrary factual determination on degree of completion or time of final completion. Accordingly, the Family Life and Child Development Center is at a stage of completion sufficient to constitute a building for application of the grounds measurement and the building measurement required by Regs. 7-55.

Third, only limited case law from other jurisdictions has addressed unfinished buildings in the context of measurements to a church. The conclusion reached in this case is not contrary to the weight of authority. Rather, in those cases addressing the issue, the peculiarities of specific statutes in those states prevent adopting a persuasive rational from other states. For example, occupancy, not the degree of completion, was the relevant criteria to New York courts since that jurisdiction, unlike South Carolina, statutorily imposed a requirement that the measured-to building be "occupied" by the church before distance measurements were imposed. In re Rupp, 105 N.Y.S. 467, 468 (1907) ("[Applicant] was required by statute to state whether the contemplated traffic would be within 200 feet of a building occupied exclusively as a church. That the building in question was when the application was filed, and now is, in the hands of the builders in an unfinished condition, and not only unoccupied, but unfit for occupancy, is undisputed. Under the statute, occupancy, and not contemplated occupancy, fixes the character of the building."); People ex rel. Sweeney v. Lammerts, 40 N.Y.S. 1107, 1110 (1896) ("It does not seem to me, however, that the conceded fact that a church society owns property within 200 feet, upon which no building has been erected, is within the prohibition. The language of the statute is, 'within two hundred feet of a building occupied exclusively as a church'; and, as there is no building there, it cannot be, and is not, occupied as a building for a church, and hence the language of the statute has no application to a case of this kind.") Thus, authorities from other states provide no persuasive views that would urge disregarding a test based upon a fifty percent completion.

Finally, determining that a fifty percent completed building is within the meaning of the term "building" is made all the more necessary due to the brief time-window in which the three hundred foot rule can be applied. By statute, the three hundred foot rule can be applied only at the initial granting of the license and never again during the life of the business.

The above restrictions [the 300 foot distances] do not apply to the renewal of licenses and they do not apply to new applications for locations which are licensed at the time the new application is filed with the department.

S.C. Code Ann. § 61-6-120 (Supp. 1997)

Thus, once the license is issued, the fact that the church building reaches full completion is of no consequence under the three hundred foot rule since all renewals and all new operators are exempted from the measuring requirements. Accordingly, to accomplish the protection intended by the statute when that protection is afforded only once over the course of the life of the liquor business, a building that is fifty percent complete is within the term "building" as used in Regs. 7-55.

iii. Deciding the Closer of the Potential End Points

The above being established, the language of Regs. 7-55 can be applied.

The ground measurement from Patel's proposed location is made to "the grounds immediately surrounding the building or buildings which provide ingress or egress to such building or buildings."

The testimony explains that an entrance to the Family Life and Child Development Center will be located on the side of the church building facing Patel's proposed location. The distance to the Royal Avenue grounds entrance is 188 feet from the driveway entrance of Patel's location. Beginning at the same driveway entrance of Patel's location, the grounds entrance to the sanctuary on Harvin Street is 420 feet. Thus, the Royal Avenue entrance is the end point used for the grounds measurement since that distance is 263 feet (188 feet from Patel's driveway on Manning Avenue plus 75 feet from Patel's front door to Manning Avenue) as opposed to the 495 feet (420 feet from Patel's driveway on Manning Avenue plus 75 feet from Patel's front door to Manning Avenue) for the Harvin Street entrance.

The other potential ending point is obtained by the buildings measurement. Under the buildings measurement, the distance is measured to "any building in which religious services are held." Under the facts of this case, while the Manning Avenue property contains a "building" for purposes of Regs. 7-55, that building must still meet the demands of the regulation before that building can be counted as a building to which a measurement can be made. Here, the regulation is clear that the building must be one "in which religious services are held." (Emphasis added). It is undisputed that no religious services are held in the building. Thus, a measurement to that building cannot be made.

Rather, under the evidence, the only building in which religious services are held is the sanctuary on Harvin Street. The Harvin Street building is at least 495 feet from Patel's front door (420 feet from Patel's driveway on Manning Avenue plus 75 feet from Patel's front door to Manning Avenue).

Accordingly, the distance under the grounds measurement is 263 feet. The distance under the buildings measurement is at least 495 feet. Thus, the closer of the ending points is the grounds measurement of 263 feet.

B. Distance to Church Determined

Having identified the beginning point as the front door of Patel's proposed location and having established the ending point as the grounds entrance to the church on Royal Avenue, the last duty is measuring the distance between these two points by use of the shortest route of ordinary pedestrian or vehicular travel along the public thoroughfare.

Distance evidence was presented by the City of Sumter and by SLED. However, the distance evidence provided by the City of Sumter is more persuasive than SLED's evidence. The City of Sumter's measurement was presented by a witness subject to cross-examination, was substantiated to a large degree by other witnesses, and was made by a traffic officer having practical experience in measuring distances from point to point on city streets. On the other hand, the SLED Agent's measurements were not persuasively substantiated by other witnesses, and his measurements were not provided through direct testimony nor were his measurements subjected to cross-examination. Thus, considering the evidence as a whole, the SLED Agent's measurements are less persuasive.

Based on the persuasive evidence, the distance between the beginning point of Patel's front door at his proposed location and the ending point at the grounds entrance to the church on Royal Avenue is 263 feet. That distance consists of the 75 feet from Patel's front door to the driveway of Patel's business on Manning Avenue plus the 188 feet from Patel's driveway to the Royal Avenue grounds entrance to the church. Accordingly, Patel's application must be denied since Jehovah Baptist Church is within three hundred feet of Patel's proposed location. S.C. Code Ann. § 61-6-120 (Supp. 1997) and Regs. 7-55.

DOR is ordered to deny Paresh K. Patel's application for a retail liquor store at 378-B Manning Avenue, Sumter, South Carolina.

AND IT IS SO ORDERED.

____________________________

RAY N. STEVENS

Administrative Law Judge

Dated: January 25, 1999

Columbia, South Carolina

1. I acknowledge that a fifty percent completion test creates a factual and judgmental issue introducing some uncertainty in the measurement criteria. However, uncertainty is already present in the existing regulations due to a lack of a definition of "building." The fifty percent test at least provides a reasonable bright line mark that infuses a degree of certainty in an already uncertain area. In any event, the law-writing and rule-making bodies are free to deviate from the fifty percent test by defining "building" by statute or regulation in a manner those bodies deem best.