ORDERS:
FINAL ORDER AND DECISION
STATEMENT OF THE CASE
This matter is before the South Carolina Administrative Law Judge Division ("Division")
pursuant to an application filed by Van S. Keefe, d/b/a The Mitchell House and Gardens
("Petitioner"). Petitioner's initial application to South Carolina Department of Revenue
("Department") was made for an on-premise beer and wine permit, as well as a sale and consumption
(minibottle) license. The Department issued an on-premises beer and wine permit to Petitioner, but
denied the application for a sale and consumption license on the basis that the proposed location is
within 300 feet of Lexington Elementary School. The only issue before the Division is determining
the proximity of The Mitchell House to the school.
After notice to the parties, a hearing was conducted on January 11, 1999, in Columbia, South
Carolina. Any issues raised or presented during the proceeding of this matter that are not specifically
addressed in this Order are deemed denied. ALJD Rule 29(C).
FINDINGS OF FACT
I make the following Findings of Fact, considering the burden of the parties to establish their
respective cases by a preponderance of the evidence and taking into account the credibility of the
witnesses:
Van S. Keefe and Phyllis Keefe own and operate The Mitchell House and Gardens
("The Mitchell House"), located at 421 North Lake Drive, Lexington, South Carolina.
The Mitchell House and Gardens is a wedding chapel, currently licensed to serve on-premise beer and wine. Mr. Keefe testified that a consumption license will afford The Mitchell
House the opportunity to be profitable and the ability to remain competitive in attracting events.
According to Mr. Keefe, the latest trend in wedding chapels is to offer libation and
a cash bar as additional options for the patrons. According to Mr. Keefe The Mitchell House
operates at a disadvantage, since it is not currently licensed to offer this service to its patrons.
The Mitchell House has been issued a Class A food service license by the South
Carolina Department of Health and Environmental Control.
There are no statutory prohibitions relating to the on-premise beer and wine permit,
which the Department issued to the Petitioner prior to the hearing scheduled before the Division.
After commencement of the hearing, the parties stipulated to the following:
a. The Mitchell House is situated within the city limits of Lexington, South
Carolina.
b. Since The Mitchell House is within the city limits, the distance requirement
from the school that must be met is a minimum of 300 feet.
c. No other prohibitions exist against the issuance of the sale and consumption
license, if the distance requirement is met.
d. Applicant meets all other statutory requirements relating to the sale and
consumption license, and the only issue for determination by the Division is
the proper method for measuring the distance, pursuant to S.C. Code Ann. §
61-6-120 (Supp. 1998).
The main entrance to The Mitchell House fronts onto North Lake Drive. At the time
of the hearing, there was construction to move the main entrance to the building to the side facing
onto Azalea Street.
Lexington Elementary School is located on Azalea Street and North Lake Drive. The
entrance into the school building is located on Azalea Street as is the driveway leading to the school
building.
The school property extends from the building to North Lake Drive.
The school entrance closest to The Mitchell House fronts onto Azalea Street, which
is perpendicular to North Lake Drive.
Between the school building on Azalea Street and North Lake Drive is an unnamed
street that connects Azalea and North Lake creating a triangular shaped parcel directly across from
the proposed location. This street is referred to as the cut-through street.
The cut-through crosses the school property but does not lead to any entrance of the
school or property used by the school. It simply connects two public thoroughfares.
The school playground is next to the school building and faces The Mitchell House.
The playground is surrounded by a fence, and there is no direct ingress, egress, beaten path, or
entrance from the direction of The Mitchell House. The only means of access to the fenced-in
playground is through the front entrance to the school. The school building is not within a fenced
area.
SLED Agent Heyward Ferrell measured the distance between The Mitchell House
and the school. The map prepared by Agent Ferrell shows two separate measurements.
Agent Ferrell measured the distance from The Mitchell House to the school by exiting
the location and making a right turn onto North Lake Drive, then past the cut-through street to a
point which creates a straight line to the building and its entrance. This measurement is 214 feet
from The Mitchell House. This route stops at the property but does not measure any distance on the
property to reach the door.
The main entrance to the school is reached by following the same path from The
Mitchell House, turning left onto the cut-through street, continuing to the end of the cut-through
street, then making a right onto Azalea Street past the entrance to the driveway of the school and
stopping at a point that lines up with the door of the school. The distance from the current entrance
of The Mitchell House on North Lake Drive to the main entrance of the school, by way of the cut-through street is 679 feet as measured by Agent Ferrell.
Mr. Keefe measured the distance from The Mitchell House by making a left turn onto
North Lake Drive, then a right onto Azalea Street, continuing to the main driveway entrance into the
school. The portion of the real property of the school in closest proximity to The Mitchell House
is approximately 550 feet. Mr. Keefe's measurement was determined by walking the route. He
relied on his pace which is 30 inches long for a total of 218 paces.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:
The South Carolina Administrative Law Judge Division has jurisdiction in this matter
pursuant to S.C. Code Ann. § 61-5-55 (Supp. 1998) and S.C. Code Ann. § 1-23-310 (Supp. 1998)
et seq.
The Department is authorized to issue a sale and consumption license to an applicant
that conducts a business bona fide engaged in the preparation of meals. S.C. Code Ann. § 61-6-1820
(Supp. 1998).
To be licensed, the business establishment must meet the criteria of S.C. Code Ann.
§ 61-6-120. S.C. Code Ann. § 61-6-1820(3) (Supp. 1998).
Section 61-6-120 provides in part:
(A) The department shall not grant or issue any
license provided for in this article or Article 7 of this
chapter, if the place of business is within three
hundred feet of any church, school, or playground
situated within a municipality or within five hundred
feet of any church, school, or playground situated
outside of a municipality. Such distance shall be
computed by following the shortest route of ordinary
pedestrian or vehicular travel along the public
thoroughfare from the nearest point of the grounds in
use as part of such church, school, or playground....
S.C. Code of Regulations R. 7-55 provides that:
Section 61-3-440 [now 61-6-120] and Section 61-5-20(D)(1)(c) provide that
a retail liquor license or a possession and consumption license may not be granted if
the place of business is within three hundred feet or any church, school, or
playground situated within a municipality, or within five hundred feet of any church,
school, or playground situated outside of a municipality. This Regulation is for the
purpose of further clarifying the distance and how it shall be measured.
With respect to a church or a school, the distance shall be measured from the
nearest entrance of the place of business by following the shortest route of ordinary
pedestrian or vehicular travel along the public thoroughfare to the nearest point
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 Alcoholic Beverage Control Commission has determined that the
grounds in use as part of the church or school is restricted to 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
buildings or buildings. Only one entrance to the grounds of a church or school shall
be considered, to wit: the entrance to the grounds nearest an entrance to the church
or school building. Where no fence is involved, the nearest entrance to the grounds
shall be in a straight line from the public thoroughfare to the nearest door. The
nearest point of the grounds in use as part of a playground shall be limited to the
grounds actually in use as a playground and the grounds necessary for ingress or
egress to such grounds from the public thoroughfare.
Ethel M. Washington, d/b/a Washington's Party Shop/ABC Store, Docket No.: 94-ALJ-17-0108-CC, Interlocutory Order, (filed July 13, 1994) interpreted the appropriate method for
calculating the measurement from the proposed location to a church, school or playground.
Beginning at the front door of the proposed location as a starting point, the path of
travel must be the "shortest route of ordinary pedestrian or vehicular travel along the public
thoroughfare" (the shortest distance to either walk or drive across public property or roads to get to
the destination). The end of the measurement is the "nearest point of entrance to the grounds of the
... school, or any building in which ... school classes are held, whichever is the closer." The
destination is dictated by the location of the point of entrance to the grounds of the school or school
building.
The "point of entrance to the grounds" of the school means a sidewalk, driveway,
parking lot, path stairway, carport, courtyard, plaza, etc., or a combination of any of the above used
in ordinary pedestrian or vehicular travel leading directly from a boundary of the school property on
a public thoroughfare to the nearest door of the nearest school building used for services or classes.
In other words, if a parking lot or sidewalk connects the street to the closest door of the school, the
measurement should be taken from the front door of the business location to the closest point where
the church sidewalk or parking lot abuts the street. Ethel M. Washington, d/b/a Washington's Party
Shop/ABC Store, Docket No.: 94-ALJ-17-0108-CC, Interlocutory Order, (filed July 13, 1994).
The appropriate measurement in this case is from the actual front door of the
proposed location on North Lake Drive turn left to Azalea Street, turn right on Azalea Street
continuing to the driveway leading to the school building. This measurement, using Mr. Keefe's
rudimentary method, is at least 550 feet.
Based upon this measurement, the proposed location is more than 300 feet from the
school and therefore meets the requirements of Section 61-6-120.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the Department of Revenue shall issue a sale and consumption license to
Van S. Keefe d/b/a The Mitchell House and Gardens upon the payment of the appropriate fees.
AND IT IS SO ORDERED.
ALISON RENEE LEE
Administrative Law Judge
March 1, 1999
Columbia, South Carolina |
