SC Administrative Law Court Decisions

Robin McManus (McManus) filed with the South Carolina Department of Revenue (DOR), an application for an off-premises beer and wine permit for 2887 Lockhart Road, Kershaw, South Carolina. A protest was filed by Sheriff Steve McCaskill who appeared at the hearing along with Reverend Clarence Dorman who also opposed the permit.

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 and 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 McManus 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 et seq. (Supp. 1998). The evidence and relevant factors require granting the off-premises beer and wine permit.

Does McManus 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

McManus asserts she meets the statutory requirements. DOR states it would have granted the permit but for the 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 April 7, 1999, McManus filed an application with the Department of Revenue for an off-premises beer and wine permit. The application is identified by DOR as AI # 0128042. 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, Sheriff Steve McCaskill of Kershaw County challenged the application giving rise to this dispute. The hearing in this matter was held Tuesday, November 2, 1999, with notice of the date, time, place and subject matter of the hearing given to the applicant, DOR, and the protestants.

B. Specific Facts of Location

The proposed business (and the place where the beer and wine permit will be utilized) is located at 2887 Lockhart Road, Kershaw, South Carolina. The business to be conducted at the location is that of a convenience store with business hours of Monday through Saturday, 5:00 a.m. until 11:00 p.m. and Sunday from 7:00 a.m. until 11:00 p.m. Within the expansive area surrounding the location is a church at a distance of .4 of a mile and a school at a distance of .9 of a mile. However, the activities of the proposed location do not demonstrate any interference with the activities of the church or the school. For example, no evidence demonstrates the presence of loud noise or other disturbances likely to act as an impediment to worship or education.

In addition, the area near 2887 Lockhart Road has no significant history of criminal activity or other concerns for law enforcement. No records of law enforcement officials demonstrate any incidents of crime occurring in or around the proposed location. Likewise, no evidence suggests the presence of drug activity near the location. The area is well policed by the Sheriff with two deputies close by and a third in the area.

As for traffic concerns, Lockhart Road is a well maintained highway with a speed limit of 55 miles per hour. Visibility is primarily unobstructed at the location and no barriers preclude deliberate exiting or entering of the proposed location. Principally, the area is rural with scattered residences amidst open fields of dispersed pine trees.

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, the granting of the off-premises beer and wine permit will not create an impact of a degree that warrants denying the permit.

Certainly, the proximity of a location to churches and schools is a proper consideration in examining a beer and wine permit request. 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). However, given the nature of the activities of an off-premises convenience store, a church at a distance of .4 of a mile and a school at a distance of .9 of a mile do not create a forbidden proximity. Here, no evidence demonstrates any interference with the activities of the church or the school, and in particular, no evidence demonstrates the presence of loud noise or other disturbances likely to disturb worship or education.

A valid consideration for reviewing a beer and wine permit is examining the impact that granting the permit will have upon law enforcement. The granting of a permit should not place an undue 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). Here, the evidence confirms the Sheriff provides significant protection with at least two and as many as three deputies in the area. Thus, a convenience store will not unduly strain law enforcement in the area.

Additionally, a relevant consideration is whether the law enforcement officers have had significant problems at or near the location or whether the location is near other locations that have been a constant source of law enforcement problems. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975); Palmer v. S.C. Alcoholic Beverage Control Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Here, no history of criminal activity was produced for the area and no evidence suggests any incidents of crime have been occurring in or around the proposed location. Further, no evidence suggests the presence of drug activity near the location. Accordingly, neither law enforcement concerns nor crime activity act as detriments to granting the permit requested.

Finally, 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, neither Lockhart Road nor the proposed location presents a traffic concern sufficient to warrant denying the permit. Rather, the road is a well maintained highway presenting no obvious visibility problems and the location presents no barriers hindering exiting or entering the proposed location. Thus, traffic concerns do not suggest the permit should be denied.

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 churches or schools. Further, other location factors do not warrant denying the permit. S.C. Code Ann. § 61-4-520 (Supp. 1998). Accordingly, McManus' 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 is ordered to grant Robin McManus' application for an off-premises beer and wine permit at 2887 Lockhart Road, Kershaw, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 29, 1999

Columbia, South Carolina