ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Maedonia D. Pettigrew (Pettigrew) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 2731 Millwood Avenue, Columbia, South Carolina. Protests were filed by David Z.
Beitz, Skip Dudley, Fred Delk, William and Jane Simoneau, Kristen Gregory, and J. Robin Turner seeking to prevent DOR
from granting the application. David Z. Beitz, Fred Delk, and J. Robin Turner appeared at the hearing and testified.
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 Pettigrew meets the requirements for having a proper location.
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 denying the on-premises beer and wine permit.
II. Issues
Does Pettigrew meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is
improper?
III. Analysis
Proper Location
1. Positions of Parties
Pettigrew asserts she 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 March 10, 1999 Pettigrew filed an application with the Department of Revenue for an on-premises beer and
wine . The application is identified by DOR as AI # 0126850. 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, David Z. Beitz, Skip Dudley, Fred Delk, William and Jane Simoneau, Kristen
Gregory, and J. Robin Turner challenged the application and presented this controversy. The hearing for this dispute was
held Monday, October 18, 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 2731 Millwood Avenue,
Columbia, South Carolina. The business is a restaurant with hours of 8:00 a.m. until 8:00 p.m., Monday through Saturday.
The operation will provide seating for thirty people and currently has no live music being provided.
B. Specific Facts of Location
1. Statutory Proximity Factors: Schools and Residences
Several schools are in the area. From the proposed location, Dreher High School is .7 mile, Hand Middle School is .6 mile,
and a Montessori school is 1,147 feet away. Relative to the normal 8:00 a.m. until 3:00 p.m. hours of the schools on
Monday through Friday, the time of operation of the proposed location is 8:00 a.m. until 8:00 p.m., Monday through
Saturday.
The proposed location's building is not visible from Hand Middle School, Dreher High School, or the Montessori school.
However, the proposed location is along a normal route of pedestrian traffic used by students going to and from the
Montessori school and to and from Dreher High School.
Residences are common in the immediate area. The distance to the closest residence is at least sixty six feet and as close as
twenty-five feet depending upon the method of measurement. Moreover, at least seventy residences are within a radius of
500 feet from the proposed location. The proposed location is visible from some but not all of the seventy residences in the
area.
2. Other Factors
a. Criminal Activity
The location has not been the scene of criminal activity. Rather, during the three years Pettigrew has operated the
restaurant, no criminal activity has been reported. Additionally, no evidence suggests any drug activity at the location.
b. Nature of Activity in Area
The principal activity in the area derives from the mixed community of residences and commercial businesses. For example,
on the same side of Millwood as the proposed location is a Midas Muffler shop less than 300 feet away. However, next door
to the proposed location at a distance of less than fifty feet is a half-way house serving as the residence for individuals
recovering from substance abuse of alcohol and drugs. In addition, a minimum of seven residences are in the immediate
vicinity.
Further, the mixture of residential and commercial activity is prevalent on the block next to the proposed location as well.
On the adjacent block, the three businesses of Ovations Hair & Nail Salon, Classical Glass, and Central Motors are present.
However, just as with the block upon which the proposed location sits, the adjacent block presents numerous residences
within 250 feet of the proposed location.
c. Traffic Concerns
The proposed location provides an area of adequate traffic ingress and egress since Millwood Avenue and the intersection of
Millwood Avenue and Fairview provide sufficient traffic routes for the proposed location. While parking at the location is
limited with a total of approximately eight spaces provided, no testimony demonstrates past accidents occurring at the
location or complaints of inadequate parking facilities.
d. Presence of Other Permits or Licenses
The immediate block has no beer and wine permit or alcoholic licenses. The closest beer and wine permit is approximately
900 feet away at a location known as Suds. Additionally, a retail liquor license and a beer and wine permit are held by a
location know as Orange's Party Shop 1200 feet away. Several beer and wine permits are utilized by businesses
approximately four blocks away on Devine Street.
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, a denial of the permit request is required since a sufficiently negative impact on the immediate community will
result from placing an on-premises beer and wine permit at the proposed location. The proposed location is next door to a
half-way house providing residential facilities for individuals recovering from alcohol and drug abuse. Under such close
proximity, the granting of an on-premises permit is simply incompatible with a substance abuse, residential facility a mere
fifty feet away.
In denying the permit, I have given due consideration to the fact that no evidence suggests that granting the permit will place
a strain upon police to adequately protect the community. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C.
167, 417 S.E.2d 555, 556 (1992); Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973). Nor is it likely that the location
will present a traffic danger. Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App.
1984). Likewise, I have given consideration to the fact that other businesses in surrounding areas sell beer and wine or
alcohol. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). However, no other location on the immediate block has a
permit.
Further, in denying the permit, I recognize the denial will not eliminate access to alcohol to residents of the rehabilitation
facility. However, the permit denial does not seek to accomplish that goal. Rather, the denial seeks to maintain a
consistency in the immediate community compatible with that of the rehabilitation facility. Here, no beer and wine or alcohol
permits are in operation next door to the rehabilitation facility with that status having been maintained for the recent past.
Thus, the denial maintains that status, forestalls the introduction of an incompatible activity next door to the rehabilitation
facility, and eliminates any negative impact upon the community that would result from granting of the permit.
2. Location Factors: Proximity
Finally, a second and independent reason exists for denying the permit. The proposed location is too close to residences in
the area. The proximity of a location to residences, churches, schools, and playgrounds is a valid 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, the proposed location's proximity to residences is simply too close and warrants denying the permit. While the area is
a mixed residential and commercial area, numerous residences are in the immediate area of the proposed location. Indeed,
one residence is only twenty five feet from the proposed beer and wine permit location. In addition, the area has at least
seventy residences within a radius of 500 feet from the proposed location. Accordingly, a denial is proper.
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 within an improper proximity to residences. Further, denying the permit request is
required since a sufficiently negative impact on the immediate community will result from placing an on-premises beer and
wine permit at the proposed location. Accordingly, Pettigrew's application seeks an on-premises beer and wine permit for a
location that is not a proper location. S.C. Code Ann. § 61-4-520 (Supp. 1998)
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR is ordered to deny Maedonia D. Pettigrew's application for an on-premises beer and wine permit at 2731 Millwood
Avenue, Columbia, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: October 29, 1999
Columbia, South Carolina |
