SC Administrative Law Court Decisions

James V. Myers (Myers) filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer and wine permit for 1204 Coffee Road, Westminster, South Carolina. Protests were filed by numerous individuals, including Andy Wells and Charles Smallwood, 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. 1998). 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. 1998). 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. 1998). Likewise, the applicant is at least twenty-one years old. S.C. Code Ann. § 61-4-520(5) (Supp. 1998). 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(8) and (9) (Supp. 1998). Finally, the applicant does not owe the state or federal government delinquent taxes, penalties, or interest. S.C. Code Ann. § 61-2-160 (Supp. 1998). Rather, the granting or denying of the permit turns upon the disputed matter of whether Myers meets the requirements of the location being proper.

Since the permit is challenged, 23 S.C. Code Ann. Regs. 7-90 (Supp. 1998) requires a hearing with jurisdiction in the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 1998), 1-23-600(B) (Supp. 1998) and 1-23-310 (Supp. 1998). The evidence and relevant factors require granting the off-premises beer and wine permit.

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

1. Positions of Parties

Myers 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. 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 November 19, 1998 Myers filed an application with the Department of Revenue for an off-premises beer and wine permit. The application is identified by DOR as AI # 124756. 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, several protestants, including Andy Wells and Charles Smallwood, challenged the application. The hearing for this dispute was held July 12, 1999, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

The proposed business (and the place where the beer and wine permit will be utilized) is located at 1204 Coffee Road, Westminster, South Carolina. The business is a convenience store with proposed business hours of Monday through Saturday from 6:00 a.m. until 11:00 p.m with the business closed on Sunday.

B. Specific Facts of Location

1. Statutory Proximity Factors

Pleasant Hill Baptist Church is 1100 feet from the proposed location. Due to the woods and surrounding foliage the proposed location is only moderately visible from Pleasant Hill Baptist Church. Additionally, the time of operation of the proposed location is Monday through Saturday from 6:00 a.m. until 11:00 p.m with the business closed on Sunday. Further, during those hours no live or recorded music is presented by the proposed location.

The closest residence is 150 feet from the proposed location with the next two residences being over 500 feet away. From most of the residences, the proposed location's building is not visible due to the surrounding woods. Considering the overall nature of the area in which the beer and wine permit will be used, the area is mostly rural with scattered residences.

2. Other Factors

The area near 1204 Coffee Road, Westminster, South Carolina has police coverage from the Oconee Sheriff's Office with a response time of approximately twelve minutes. However, no evidence shows the presence of any incidents of crime occurring in and around the proposed location. Likewise, no incidents of drug activity have been presented in this matter either by law enforcement or citizens in the community.

As for traffic, Coffee Road provides an adequate traffic route for the proposed location. In addition, parking at the location does not present a safety concern. Further, the proposed location is in an area that is primarily rural in nature and is one that is within three miles of Myers's residence of 1185 Cobbridge Road.

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. 1998), 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, 1,100 feet is a significant distance to Pleasant Hill Baptist Church. In addition, that distance presents a further separation from the proposed location since the woods and surrounding foliage allow only a view of the church roof and steeple from the parking lot of the proposed location. Additionally, the time of operation of the proposed location is not likely to create disturbances to the church. While certainly the church conducts its ministry activities on days of the week other than Sunday, it is significant that the proposed location will be closed on Sunday. Further, during the hours the location is open, no live or recorded music will be present. Considering all of the relevant factors, the proposed location is not within an improper proximity to Pleasant Hill Baptist Church.

As for proximity to residences, the closest residence is 150 feet from the proposed location with the next two residences being over 500 feet away. From most of the residences, the proposed location's building is not visible due to the surrounding woods. Considering the overall nature of the area in which the beer and wine permit will be used, the area is mostly rural with scattered residences. Accordingly, the proposed location is not within an improper proximity to 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).

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). Likewise, evidence exists of an improper location when law enforcement officers find open beer being consumed on school and playground property. Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981). 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). Is the location near other locations that have been either a constant source of law enforcement problems or are locations where young people congregate and loiter? Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

Here, the evidence does not indicate a law enforcement problem for this area. The area has police coverage from the Oconee Sheriff's Office with a response time of approximately twelve minutes. No evidence demonstrates the presence of crime occurring around the proposed location nor are incidents of drug activity noted. Additionally, as for traffic safety, Coffee Road provides an adequate traffic route for the proposed location and parking at the location does not present a safety concern. Likewise, a proper consideration is whether the applicant and the applicant's family live in close proximity to the location. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here, the proposed location is within three miles of Myers's residence of 1185 Cobbridge Road.

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 violate the statutory requirements for a beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1998). Accordingly, Myers's application seeks an off-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 shall grant James V. Myers's application for an off-premises beer and wine permit at 1204 Coffee Road, Westminster, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: July 14, 1999

Columbia, South Carolina