SC Administrative Law Court Decisions

Herbert Davis (Davis) filed with the South Carolina Department of Revenue (DOR), an application for an on-premises beer and wine permit for 2300 Lyttleton Street, Camden, South Carolina. A protest was filed by Lt. Michael H. Stone of the City of Camden Police Department seeking to prevent DOR from granting the application. In this matter, not all of the requirements for obtaining a beer and wine permit are disputed. Rather, the granting or denying of the permit turns upon the disputed matter of whether Davis meets the requirements of the location being proper.

Protests were filed pursuant to S.C. Code Ann. § 61-4-525 resulting in a contested case before the Administrative Law Judge Division (ALJD) under S.C. Code Ann. §§ 61-2-260 (Supp. 2001), 1-23-600(B) (Supp. 2001) and 1-23-310 (Supp. 2001). The evidence and relevant factors require denying the on-premises beer and wine permit.

Does Davis 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

Davis asserts he meets the statutory requirements. DOR states it cannot grant the permit until the disputed issue of the location is decided and that the issue must be resolved by giving consideration to the protest from the Camden Police Department. 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 September 11, 2002 Davis filed an application with the Department of Revenue for an on-premises beer and wine. The application is identified by DOR as AI # 32029138-6. 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, Lt. Michael H. Stone of the City of Camden Police Department challenged the application giving rise to this controversy. The hearing was held Thursday, January 30, 2003, with notice of the date, time, place and subject matter 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 2300 Lyttleton Street, Camden, SC. The business will have a jukebox and will provide chicken sandwiches. The business will be open on Friday from 6:00 p.m. until 1:00 a.m. and on Saturday 6:00 p.m. until 12 a.m. The operation will provide seating for approximately 70 and will provide approximately 13 parking spaces.

B. Specific Facts of Location

1. Statutory Proximity Factors

Not all of the statutory proximity factors are in issue in this case. The proposed location is not within an improper proximity to churches, schools, or playgrounds. However, the area is primarily a residential neighborhood.

2. Other Factors

The area near 2300 Lyttleton Street has police coverage from the Camden City Police. Records of law enforcement officials show that in the past the location has been a high crime area. For example, the location held the distinction of the being the location having the highest demand for police intervention of any location in Camden. In fact, the degree of crime was so high that in 1998 Judge Bates of the Administrative Law Judge Division denied the renewal of Davis' beer and wine permit. The results of that denial have produced a positive outcome since the testimony establishes that the degree of crime at the location dropped markedly after the beer and wine permit was denied. Indeed, the degree of crime at the location is now essentially zero.

Further, the number of police officers providing coverage in Camden has not increased since 1998. Rather, the coverage has actually decreased since 1998.

A railroad track is within 60 feet of the location. In the past, accidents have occurred on the tracks resulting in at least two deaths with the individuals killed either going to or coming from the location here under review.

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. 2001), 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).

2. Location Factors: Proximity

The proximity of the location to residences, churches, schools, and playgrounds is a proper 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 area is essentially a residential area.

3. Location Factors: Other

A proper consideration for reviewing a beer and wine permit is examining the impact granting the permit will have upon law enforcement. Evidence that granting the permit will place a strain upon police to adequately protect the community must be weighed. Moore v. S.C. Alcoholic Beverage Control Comm'n, 308 S.C. 167, 417 S.E.2d 555, 556 (1992). For example, one measure of the strain is evidence of insufficient police to cover the likely crowd that might gather at the location. Fowler v. Lewis, 260 S.C. 54, 194 S.E.2d 191 (1973).

Here, the police coverage for Camden is not increasing. Rather, the number of police officers providing coverage in Camden has not increased since 1998. Instead, the coverage has actually decreased since 1998.

Further, the need for likely police intervention must be examined. For example, a relevant consideration is whether the law enforcement officers have had significant problems with public intoxication at or near the location. Roche v. S.C. Alcoholic Beverage Control Comm'n, 263 S.C. 451, 211 S.E.2d 243 (1975). 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).

Records of law enforcement officials show that in the past the location has been a high crime area. For example, the location held the distinction of the being the location having the highest demand for police intervention of any location in Camden. In fact, the degree of crime was so high that in 1998, Judge Bates of the Administrative Law Judge Division denied the renewal of Davis' beer and wine permit. The results of that denial have produced a positive outcome since the testimony establishes that the degree of crime at the location dropped markedly after the beer and wine permit was denied. Indeed, the degree of crime at the location is now essentially zero.

Consideration can be given to the extent to which the location 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, a railroad track is within 60 feet of the location. In the past, accidents have occurred on the tracks resulting in at least two deaths. The individuals killed were either going to or were coming from the location here under review. Thus, the degree of safety at the location is not consistent with the granting of a beer and wine permit.

Finally, a relevant factor 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).

Here, the location has held a permit in the past. However, the past operation and high crime demonstrates an inability to control patrons at the location both outside as well as inside the building. Indeed, as expressed above, once the beer and wine permit was denied in 1998, the location no longer was subject to crime. Accordingly, the location continues to be an unsuitable location for a beer and wine permit.

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, the past evidence of high crime associated with the presence of a beer and wine permit renders the location unsuitable. Accordingly, Davis's application seeks an on-premises beer and wine permit for a location that is not a proper location.

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

DOR must deny Herbert Davis's application for an on-premises beer and wine permit at 2300 Lyttleton Street, Camden, SC.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: February 4, 2003

Columbia, South Carolina