ORDERS:
FINAL ORDER AND DECISION FOLLOWING PRIOR VACATED ORDER
I. Introduction
A previous order of December 13, 1999 decided this case. However, due to a lack of sufficient notice, the prior decision
was vacated in an order dated December 22, 1999. To afford all an opportunity for an adequate hearing, a new hearing in
the matter was held on March 21, 2000.
II. 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 permit for 1003 Pearman Dairy Road, Anderson, South Carolina. A protest was filed by
Reverend David N. Neal, Pastor, Harvest Baptist Church, Anderson, South Carolina with the protest seeking to prevent
DOR from granting the application. Rev. Neal attended the hearing and participated in the case.
In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. No dispute exists that the
applicant has sufficient 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 the location chosen by Li'l Cricket is proper.
III. 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?
IV. Analysis
Proper Location
1. Positions of Parties
Li'l Cricket asserts it 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 protestant asserts 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 5, 1999, Li'l Cricket filed an application with the Department of Revenue for an off-premises beer and
wine permit. The application is identified by DOR as AI # 125604. 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, Reverend David N. Neal, Pastor of Harvest Baptist Church, challenged the application. A
hearing was held on March 21, 2000, 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 1003 Pearman Dairy
Road, Anderson, South Carolina. The business is a convenience store with business hours of Monday through Sunday, 6:00
a.m. until 1:00 a.m.
B. Specific Facts of Location
1. Statutory Proximity Factors
Harvest Baptist Church is .4 mile from the proposed location, but is located on Stone Drive, three streets away from the
proposed location. Likewise, Westside High School is approximately 1100 feet from the proposed location. Due to recent
construction of a drug store, the proposed location's building is not visible from Harvest Baptist Church.
Given the nature of the activities of the convenience store, the likelihood of interference with church activities or school
activities is not proven by the evidence presented. 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 live music or recorded music will be provided. Considering
all of the factors, the proposed location is not within an improper proximity to churches or schools in the area.
2. Other Factors
The evidence does not establish a lack of proper police coverage and no evidence establishes crime or drug activity in the
immediate area. Additionally, Pearman Dairy Road is a four-lane highway that provides an adequate traffic route for the
proposed location. Further, the overall area has several establishments that hold either a beer and wine permit or an alcohol
license. For example, Little General Store, Brenda's, Bullmart, and Sav-Way are less than one and a half miles from the
proposed location and each hold a beer and wine permit. The addition of an off-premises beer and wine permit at the
proposed location will not adversely change the character of the area. Most significantly, the proposed location previously
operated with a beer and wine permit for twenty-nine years with no evidence of being disruptive to the surrounding area.
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
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). Here, no adverse factors warrant denying the off-premises request.
For example, the proximity of the location to residences, churches, schools, and playgrounds is a proper consideration.
William Byers v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992); Moore v. S.C. ABC Comm'n, 305 S.C. 243,
407 S.E.2d 653 (1991). Here, a church and school are at distances of .4 of a mile and 1100 feet, respectively. However,
nothing in the evidence identifies an interference with activities of either institution.
Certainly, a proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will
have upon law enforcement. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556
(1992); Fowler v. Lewis, 263 S.C. 451, 211 S.E.2d 243 (1975).; Roche v. S.C. Alcoholic Beverage Control Comm'n,260
S.C. 54, 194 S.E.2d 191 (1973). Here, the evidence fails to identify any source of crime at the location and does not present
a basis for expecting a police coverage concern.
Likewise, 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 traffic route is a four-lane highway which is adequate for the location. Likewise, no evidence establishes
an impediment to entering or exiting the location.
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, other commercial establishments are nearby and the area is not predominately a residential community. In
fact, consideration may be given to whether other similar businesses that sell beer and wine or alcohol already exist within
the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). Here at least four other beer and wine permits are within
one and half miles, and of those, two are at a distance of less than a mile.
Finally, a very significant factor in this case is 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 proposed location has been operated
virtually continuously with a beer and wine permit for twenty-nine years with no significant incidents. No evidence
establishes that the location is now any less suitable than in the recent past.
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 warrant denying the beer and wine permit. S.C. Code Ann. § 61-4-520 (Supp. 1998).
Accordingly, Li'l Cricket's application seeks a beer and wine permit for a location that is a proper location.
V. 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 1003
Pearman Dairy Road, Anderson, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: March 28, 1999
Columbia, South Carolina |