SC Administrative Law Court Decisions

I. Statement of the Case

Li'l Cricket Food Stores, Inc. (Li'l Cricket) filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer and wine for 2931 Greer Highway, Marietta, South Carolina. A protest was filed by Reverend Bennie L. Durham, Senior Pastor, Marietta First Baptist Church seeking to prevent DOR from granting the application.

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 Li'l Cricket 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). In this case the evidence and relevant factors require granting the off-premises beer and wine permit.

II. Issue

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

III. Analysis

Proper Location

1. Positions of Parties

Li'l Cricket asserts its 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 protestant asserts the location is not suitable for a permit.

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 5, 1999, Li'l Cricket filed an application with the Department of Revenue for an off-premises beer and wine permit. The permit will be utilized at a convenience store located at 2931 Greer Highway, Marietta, South Carolina. The application is identified by DOR as AI # 125614. 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 posting of notices, a challenge to the application was filed by Reverend Bennie L. Durham, Senior Pastor, Marietta First Baptist Church.

B. Specific Facts of Location

1. Statutory Proximity Factors

Marietta First Baptist Church is across the street from the proposed location at a distance of approximately 240 feet. The church includes a sanctuary and a playground with normal services held on the church property on Sunday and Wednesday with other uses of the property throughout the week. The church property is separated from the proposed location by a four lane highway with a center median. The time of operation of the proposed location is Monday through Sunday, 6:00 a.m. until 1:00 a.m. and during those hours no music is provided at the location.

2. Other Factors

The proposed location and immediate vicinity near 2931 Greer Highway, Marietta, South Carolina presents no evidence of law enforcement involvement. No evidence establishes any incidents of crime occurring in and around the proposed location. Likewise, no evidence of drug activity at the location is present and no violations of alcohol laws have been established. The Greer Highway provides an adequate traffic route for the proposed location with no accidents at the location established. In addition, the ingress and egress at the location present no traffic concerns warranting traffic police intervention.

Less than a mile from the proposed location is an off-premises beer and wine permit in use at a Handee Mart Food Store which operates a convenience store very similar to the applicant's business. The applicant's business seeks a beer and wine permit to continue a previous business operated at the location. In fact, the location has been previously operated as a retail facility since 1952 and has operated with a beer and wine permit for at least the past 24 years. In addition, the applicant has operated under a temporary beer and permit for over a year and has presented no disturbance to the community.

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).

In this case, community impact does not present a sufficient basis to deny the permit. Here, other permits are in area and the location has held a permit for over 24 years. In those prior periods no compelling reasons establish an incompatibility with the community.

2. Location Factors: Proximity

In addition to community concerns, for proposed locations outside a municipality, the General Assembly has established a fixed distance of 500 feet from a church as a zone within which no alcohol license may be granted. S.C. Code Ann. § 61-6-120 (Supp. 1998). However, that statute applies only to an alcohol license and does not apply to a beer and wine permit. William Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Rather, for a beer and wine permit, each case must be decided on its own facts. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

In this case, the distance to the church is not a factor sufficient for the denial of the permit. In examining the distance factor, a significant inquiry is deciding the extent, if any, to which the location will interfere with the church activities. Here, the church is on the opposite side of the highway from the proposed location. Further, the highway is a four-lane highway with a center median. Such a layout presents a meaningful separation from the church. In addition, the permit will allow an activity that does not interfere with the church's activities. In other words, no consumption of beer or wine is allowed on the premises of the proposed location and the proposed location does not conduct an activity that will encourage the congregating of individuals on its premises. For example, no live or recorded music is provided. Thus, on the whole, the church is sufficiently distant from the proposed location so as to not warrant denying the application.

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). Another measure 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). Similarly, pertinent facts include 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).

Here, the evidence does not establish any police involvement at this location. No evidence establishes any incidents of crime occurring in and around the proposed location. Likewise, no evidence of drug activity at the location is present and no violations of alcohol laws have been established. In short, law enforcement has not been a factor during the prior years that a permit was held at this location. Nothing about the new owner suggests that police involvement will be of any greater concern in the future.

Certainly, 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). However, in this case, no evidence of highway accidents has been established and no evidence of improper access and exit routes has been proven.

Finally, a very significant factor here is considering whether in the recent past beer and wine have been sold at the same location by former owners and whether the evidence shows that the location is now any less suitable than during the former time period. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). In this case, the former owner held a beer and wine permit for at least 24 years and no evidence suggests that the new owner will present any concerns for improper use if a new permit is issued.

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 establish a basis for denying the off-premises beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1998). Accordingly, Li'l Cricket's application seeks an off-premises beer and wine 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 Li'l Cricket Food Stores, Inc.'s application for an off-premises beer and wine permit at 2931 Greer Highway, Marietta, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: March 31, 2000

Columbia, South Carolina