SC Administrative Law Court Decisions

Tina M. Floyd (Floyd) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 500 Old Manning Road, Sumter, South Carolina. A protest was filed by Pine Grove Baptist Church seeking to prevent DOR from granting the application. In addition, Tom Hedrick and Glenda Hedrick testified in opposition to 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 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 Floyd 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 permit with restrictions.

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

1. Positions of Parties

Floyd 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 April 27, 1999, Floyd filed an application with the Department of Revenue for an on-premises beer and wine. The application is identified by DOR as AI # 127774. 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, Pine Grove Baptist Church challenged the application. In addition, Mr. and Mrs. Tom Hedrick expressed opposition. The hearing for this dispute was held Thursday, November 4, 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 500 Old Manning Road, Sumter, South Carolina. The business is a bar and recreational area having pool tables, a juke box, and limited seating capacity at two booths. The business hours are from 10:00 a.m. until 2:00 a.m. Monday through Friday; 10:00 a.m. until 12:00 p.m. on Saturday; closed on Sunday. The business will not provide live music and provides no recorded music outside the building.

B. Specific Facts of Location

1. Statutory Proximity Factors

Proximity to churches, schools, and residences is a relevant consideration. Each is considered in this review.

Here, Pine Grove Baptist Church is approximately 500 feet from the proposed location. While the church conducts its activities on days in addition to Sunday, Sunday is the primary day of worship for the church. Notably, the proposed location is closed on Sunday. In addition, no persuasive evidence establishes that activities of the proposed location will interfere with the activities of the church.

A school, Lakewood High School, is between 1,000 feet and 1,700 feet from the proposed location. No school building is visible from the proposed location.

As for residences, the area is a mixture of residences and business establishments. For example, a used car lot and a tanning salon are nearby while a residence is 55 feet from the proposed location when measured by the most direct route and approximately 131 feet when measured by use of the public thoroughfare of Old Manning Road. However, considering the overall nature of the area in which the beer and wine permit will be used, the area is best characterized as rural in nature and not highly residential.

2. Other Factors

Law enforcement activity is relevant. From October 1998 to September1999, a law enforcement response sheet identifies twelve official visits to the proposed location. However, no testimony explains the visits, and based on the brief descriptions given by the report, none of the twelve can be fairly characterized as involving physical violence to a person. Rather, crimes against property (two break-ins after closing hours, a larceny investigation, and a property recovery) and general investigatory visits (two incidents of suspicion and two incidents of disturbances) account for two thirds of the visits. Further, no evidence establishes any arrests or any convictions resulting from the police visits. Finally, none of the visits relate to drugs at the location.

As for traffic in the area, Old Manning Road provides an adequate traffic route for the proposed location. No persuasive evidence establishes any difficulty with entering or exiting the location.

A significant factor is whether the location operated with a beer and wine permit in the past. In this case, the proposed location has operated virtually continuously with a beer and wine permit under former owners since at least 1982. From 1982 until 1989, the location held an off-premises beer and wine permit as either Marshall's Store or Davis Grocery. Beginning in February of 1989, the location obtained an on-premises permit and was operated by Edmond Geddings, d/b/a Ed's Grocery and Ed's Party Supplies. A new permit holder, Hugh Bradley, began operation of the location in 1997, and continued until the current application filed by Floyd in April of 1999. During all of those periods, no violation of the beer and wine laws were noted by the former ABC Commission, SLED or DOR.

Although having operated successfully in the past, recent events have raised concerns for at least one of the closest neighbors. For example, traffic leaving the location has crossed the neighbor's yard and patrons have congregated in the parking lot of the facility with those patrons holding open containers and consuming beer in the parking lot. On at least one occasion, public urination has occurred in recent months.

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 impact 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, with specific restrictions related to a wooden privacy fence and prohibiting drinking on the outside of the building, a consideration of the overall location factors does not demonstrate an adverse consequence upon the community.

2. Location Factors: Proximity

Since this same location has been in virtually continuous operation since 1982 with a beer and wine permit, the mere fact of proximity to residences, churches, schools, and playgrounds is not a basis by itself to deny a permit request. See S.C. Code Ann. § 61-4-520(7) (Supp. 1998) ("The department may consider, among other factors, as indications of unsuitable location, the proximity to residences, schools, playgrounds, and churches. This item does not apply to locations licensed before April 21, 1986.") However, while not a disqualifying factor, the proximity of the location to residences, churches, schools, and playgrounds is still a legitimate 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).

The fact that Pine Grove Baptist Church is approximately 500 feet from the proposed location is not sufficient to warrant denying the permit. Rather, the church's primary worship activity occurs on Sunday, a day the proposed location is closed. Additionally, no persuasive evidence establishes that activities of the proposed location will interfere with the activities of the church. Similarly, no evidence establishes an interference with activities at Lakewood High School. That institution is over 1,000 feet away, and no school building is visible from the proposed location.

While at least one residence is nearby, the area as whole is a mixture of residences and business establishments. Considering the overall nature of the area, the area is best characterized as rural and not highly residential. Further, given the requirement to install a wooden privacy fence and to prohibit consumption of beer and wine outside the building, the concerns of the nearby neighbor are sufficiently addressed so as not to warrant a denial of the permit.

3. Location Factors: Other

Other factors demonstrate the permit must be granted.

A proper consideration for reviewing a beer and wine permit is examining whether 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). No evidence in this case establishes a strain upon existing police protection. Thus, a lack of law enforcement coverage has not been shown and provides no basis for denying the permit.

In a similar vein, the past history of the area is relevant. For example, 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). In this case, the evidence establishes that from October 1998 to September1999, law enforcement made twelve official visits to the proposed location. However, two-thirds of the visits were general investigatory visits and did not involve physical violence to a person. Rather, many of the incidents were crimes against property, e.g. two break-ins after closing hours, a larceny investigation, and a property recovery. Finally, no evidence established any arrests or convictions resulting from the police visits and none of the visits related to drugs at the location. Thus, the past history of the location does not warrant a denial of a beer and wine permit.

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, Old Manning Road provides an adequate traffic route for the proposed location and no persuasive evidence establishes any difficulty with entering or exiting the location.

A significant factor in this case is whether beer and wine have been sold at the same location in the recent past 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 operated virtually continuously from 1982 with a beer and wine permit under former owners. During that time, no violation of the beer and wine laws were noted by the former ABC Commission, SLED or DOR. The evidence does not demonstrate that the location is now any less suitable than during the former time period. Thus, no basis exists to deny the permit.

However, while no past conduct is significant enough to deny the permit, the recent actions of some patrons have begun to cause concern to nearby neighbors and such actions must be addressed. When required, it is appropriate to impose restrictions. The granting of a beer and wine permit is the granting of a privilege which may be restricted under the police powers of the State. Feldman v. S.C. Tax Comm'n, 204 S.C. 49, 26 S.E.2d 22 (1943). Furthermore, permits and licenses are authorized by statute and regulation to be issued with restrictions. S.C. Code Ann. § 61-2-80 (Supp. 1998); 23 S.C. Code Regs. 7-88 (1976).

In this case, some patrons have begun to drive through the neighbor's yard and have begun to congregate in the parking lot with open containers. In fact, at the hearing, Floyd stipulated that she would construct a wooden privacy fence along the length of her property line that paralleled the neighbor's property line and would prohibit consumption of beer and wine on the outside of her building. Such actions will significantly reduce the impact upon the closest neighbor. Accordingly, the granting of the permit is restricted as set forth in the Order portion of this decision.

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, with the restrictions imposed by this decision, is proper for the granting of a permit. S.C. Code Ann. § 61-4-520 (Supp. 1998). Accordingly, as restricted, Floyd's application seeks an on-premises beer and wine for a location that is a proper location.

Based upon the Findings of Fact and Conclusions of Law, DOR is ordered to grant Tina M. Floyd's application for an on-premises beer and wine permit at 500 Old Manning Road, Sumter, South Carolina only upon the following conditions:

1. DOR and Floyd shall agree to a restriction upon the permit which prohibits the consumption of any beer or wine on the outside of any building located at 500 Old Manning Road, Sumter, South Carolina.

2. DOR and Floyd shall agree to a restriction upon the permit which requires the construction, final completion, and normal maintenance of a six foot high, wooden privacy fence along the location's property line that parallels the property line of Tom Hedrick and Glenda Hedrick. A final permit shall not be granted until the fence is completed to the satisfaction of DOR or SLED.

3. These restrictions shall become a part of the permit and any violation of the restrictions shall be subject to enforcement in the same manner as any comparable violation of the permit itself.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: November 29, 1999

Columbia, South Carolina