ORDERS:
FINAL ORDER AND DECISION
This matter comes before me pursuant to S.C. Code Ann. §§ 61-6-1820 (Supp. 1998), 61-6-20 (Supp. 1998), 61-4-520
(Supp. 1998), and 23 S.C. Code Ann. Regs. 7-19 (1976) following the Petitioner's request for a contested case hearing. The
Petitioner, David L. Ratliff, d/b/a Dave's Games and Things, seeks an on-premises beer and wine permit and a business sale
and consumption minibottle license. The South Carolina Department of Revenue ("DOR") denied the Petitioner's
application because the proposed location was partially under construction, did not have a Class A sanitation rating, and
lacked an adequate kitchen, menus, and food. In addition, a Protestant filed a written protest with the DOR disputing the
suitability of the location. Upon the Petitioner's request, the DOR transmitted this matter to the Administrative Law Judge
Division ("ALJD") for a hearing. A hearing was held on October 6, 1999 at the ALJD in Columbia, South Carolina.
THE PROTESTANT
Geneva Finlayson, the sole Protestant in this matter, complained that the proposed location is too close to property owned
by Salem Missionary Baptist Church and to a proposed playground. Neither the Church's Pastor nor any other duly
authorized representative protested on behalf of the Church. Also, no residents living near the proposed location protested
the application.
FINDINGS OF FACT
Having carefully considered the testimony and the arguments presented by the parties and Protestant, and taking into
account the credibility of the evidence, I find by a preponderance of the evidence:
THE PETITIONER
1. The Petitioner, David L. Ratliff, d/b/a Dave's Games and Things, seeks an on-premises beer and wine permit
and a business sale and consumption minibottle license for his establishment located at 103 Toasley Drive, Chesterfield,
South Carolina, in Chesterfield County.
2. The parties and the Protestant were notified of the time, date, place, and subject matter of this hearing.
3. The Protestant did not move to intervene as a party in this matter.
4. The Protestant did not challenge the Petitioner's suitability to hold the permit, but she did challenge the
suitability of the location.
5. The evidence supports the Petitioner's suitability to hold the requested permit and license.
6. The Petitioner has the required degree of moral character to hold the requested permit and license. See S.C.
Code Ann. § 61-4-520(1) (Supp. 1998) and S.C. Code Ann. § 61-6-1820(2) (Supp. 1998).
7. The Petitioner is in compliance with S.C. Code Ann. § 61-2-180 (Supp. 1998) regarding delinquent taxes.
8. The Petitioner 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. His principal place of abode is in South Carolina. See S.C. Code Ann. § 61-4-520(2)
(Supp. 1998) and S.C. Code Ann. § 61-6-1820(7) (Supp. 1998).
9. The Petitioner has not had a beer or wine permit revoked within two years of the date of the current
application. See S.C. Code Ann. § 61-4-520(4) (Supp. 1998).
10. The Petitioner is at least twenty-one years old. See S.C. Code Ann. § 61-4-520(5) (Supp. 1998) and S.C.
Code Ann. § 61-6-1820(6) (Supp. 1998).
11. The Petitioner gave proper notice of the application. See S.C. Code Ann. § 61-4-520(7) and (8) (Supp.
1998); S.C. Code Ann. § 61-6-1820(4) and (5) (Supp. 1998).
12. The Petitioner has not been convicted of a felony within ten years of the date of his application. See S.C.
Code Ann. § 61-6-1920(8) (Supp. 1998).
THE LOCATION
13. The Protestant first contends that the proposed location is impermissibly close to a church. Both the
proposed location and the Salem Missionary Baptist Church are within Chesterfield's municipal limits. Therefore, the
proposed location must be at least 300 feet from the church. See S.C. Code Ann. § 61-6-120 (Supp. 1998). According to
Agent McNeil's calculations, the closest entrance to a church building is 672 feet from the entrance to the proposed location.
14. Moreover, the Church is not visible from the front door of the proposed location. Similarly, the proposed
location is not visible from the front door of the Church.
15. The Protestant next argues that the proposed location is too close to a proposed playground. According to
the Protestant, the "playground" is proposed; therefore, it does not fall within the statutory definition. See S.C. Code Ann. §
61-6-120 (Supp. 1998) and S.C. Code Ann. Regs. 7-55 (1976). Furthermore, the SLED Investigation Report does not
indicate that there is a playground within sight, hearing, or 500 feet of the proposed location.
16. The hours of operation will be Monday through Friday from 5:00 pm. to 11:00 p.m.; Saturday from 1:00 p.m.
until midnight; and closed on Sunday.
17. Although a school bus stop is nearby, the proposed hours of operation do not coincide with school children
leaving the bus stop. No children will be required to traverse the establishment's parking area during business hours.
18. The Petitioner owns both the real property as well as the building which comprise the proposed location. For
a number of years, the Petitioner has operated various businesses at that same location.
19. Neither the Chesterfield Police Department nor the Chesterfield Sheriff's Department had any reports of
violent or unusual incidents at the proposed location, and they did not protest the application.
20. Construction on the proposed location is now complete. A copy of the menu and pictures showing a kitchen
sink, stove and microwave were introduced into evidence by Petitioner. Furthermore, on April 8, 1999, the Petitioner
received the required Grade "A" sanitation rating from the South Carolina Department of Health and Environmental Control
("DHEC"). Based on DHEC's issuance of the Grade "A" sanitation rating, Agent McNeil's reinspection of the proposed
location, and the evidence presented by Petitioner, the business is now deemed to have an adequate kitchen.
CONCLUSIONS OF LAW
Based on these Findings of Fact, I conclude:
1. The ALJD has subject matter jurisdiction in this matter pursuant to Chapter 23 of Title 1 of the 1976 Code,
as amended.
2. The Petitioner meets the statutory personal requirements of S.C. Code Ann. §§ 61-4-520 (Supp. 1998) and
S.C. Code Ann. § 61-6-1820 (Supp. 1998); and may, therefore, hold the requested permit and license, provided the location
is suitable.
3. 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 suitable.
4. Similarly, the location must be suitable prior to the DOR's issuance of a business sale and consumption
minibottle license. S.C. Code Ann. § 61-6-1820 (Supp. 1998).
5. Although proper location is not statutorily defined, broad discretion is vested in the ALJD in determining the
fitness or suitability of a particular location. See Fast Stops, Inc. v. Ingram, 276 S.C. 593, 281 S.E.2d 118 (1981); Byers v.
South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984).
6. The determination of suitability "involves an infinite variety of considerations related to the nature and
operation of the proposed business and its impact on the community within which it is to be located." Kearney v. Allen, 287
S.C. 324, 326-27, 338 S.E.2d 335, 337 (1985) (citations omitted). The determination is not solely a function of geography.
7. In general, consideration may be given to any factor demonstrating the adverse effect the proposed location
will have on the community, Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984),
including the location's proximity to a church, school, or residence. S.C. Code Ann. § 61-4-520(7) (Supp. 1998). See also
Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991) (the proximity to a church, school, or
residence, by itself, may support of finding of unsuitability) (discussing the predecessor statute). Unlike the requirements
enumerated for obtaining a minibottle license, no minimum distance is specified by statute for determining the permissible
proximity to a church, school, or residence for obtaining a beer and wine permit. Compare S.C. Code Ann. § 61-6-120
(Supp. 1998) with S.C. Code Ann. § 61-4-520 (Supp. 1998). Rather, each case must be decided on its own facts. Moore v.
South Carolina ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992) (balancing the respective interest of the petitioner and
the members of the community to determine whether the requested permit should issue); Palmer v. South Carolina ABC
Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984) (noting the decision to issue a permit rests in the sound discretion
of the commission).
8. Without evidence of an adverse impact on the community, the application must not be denied if the statutory
criteria are satisfied. The fact that the issuance of a permit or license is protested is not a sufficient reason by itself to deny
the application. See 48 Am. Jur. 2d Intoxicating Liquors § 162 (Supp. 1998); 48 C.J.S. Intoxicating Liquors § 119 (1981).
9. After considering all of the relevant factors, including the nature of the business, and weighing the evidence
presented at the hearing, I conclude that the proposed location is not within an improper proximity to residences, schools,
churches, or playgrounds. Further, other location factors do not render the proposed location an improper one for an on-premises beer and wine permit and a business sale and consumption minibottle license.
RESPONDENT'S MOTION
Respondent requested that in the event I found the proposed location suitable, instead of requiring DOR to issue the permit,
that I condition the issuance on all of the statutory requirements being met by Petitioner. As counsel for the Petitioner
stated, however, that is a matter of law. Moreover, Agent McNeil reinspected the proposed location, found that the
Petitioner now meets the statutory requirements for a business sale and consumption minibottle license, which were
previously found to be lacking, and stated there is nothing further required. Based on Agent McNeil's testimony and the
Petitioner's evidence, no such expressed condition is warranted.
ORDER
THEREFORE, the DOR shall grant the Petitioner's application for an on-premises beer and wine permit and a business sale
and consumption minibottle license for his establishment located at 103 Toasley Drive, Chesterfield, South Carolina.
AND IT IS SO ORDERED.
______________________________
C. DUKES SCOTT
ADMINISTRATIVE LAW JUDGE
October 8, 1999
Columbia, South Carolina |
