ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Yvonne M. Goodwin (Goodwin) filed with the South Carolina Department of Revenue (DOR), an
application for an off-premises beer and wine permit for 4225 Walnut Grove Road, Roebuck, South
Carolina. The intervenor, Unity Baptist Church, filed a protest seeking to prevent DOR from
granting the application on the ground that the location is not a proper location.
Thus, not all of the requirements for obtaining a beer and wine permit are disputed. Instead, the only
dispute here is whether the off-premises beer and wine permit should be denied due to the presence
in the immediate area of several churches and residences.
See S.C. Code Ann. § 61-4-520(6) (Supp.
2003) (the location must be a "proper one."); S.C. Code Ann. § 61-4-520(7) (Supp. 2003)
(indications that a location is not proper include "the proximity to residences, schools, playgrounds,
and churches."). Given a protest pursuant to S.C. Code Ann. § 61-4-525, a contested case results
before the Administrative Law Court under S.C. Code Ann. §§ 61-2-260 (Supp. 2003), 1-23-600(B)
(Supp. 2003) and 1-23-310 (Supp. 2003).
II. Issue
Does Goodwin meet the requirements for an off-premises beer and wine permit in light of an
allegation that the location is within an improper proximity to churches and residences?
III. Analysis
Proper Location
1. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
On or about July 31, 2003, Goodwin filed an application with the Department of Revenue for an off-premises beer and wine permit to be utilized at a business located at 4225 Walnut Grove Road,
Roebuck, South Carolina. The business is a convenience store with hours of 6:00 a.m. until 12:00
a.m. and can be reached via an exit ramp from I-26.
The application is identified by DOR as AI # 3203-2183-4. Both the applicant and the location were
investigated by SLED resulting in the investigating agent drawing a map generally depicting the
immediate area of the proposed location. The area is a rural and residential area that is home to three
churches and two residential communities.
The Unity Baptist Church is across the street from the proposed location at a distance of 374 feet.
The church has been at its current location since 1855 while the proposed location was built in 1960.
In addition, a Jehovah's Witness church is in the immediate area on Walnut Grove Road. The
distance to that church is unspecified by the testimony but the proposed location is visible from the
front portion of the property of the Jehovah's Witness church. Finally, on the other side of I-26 is
Mount Alexander Baptist Church, a third church nearby but also at an unspecified distance.
The closest residence is 155 feet and is directly across the road from the proposed location. Other
residences are in the area since two housing developments are within .5 miles of the proposed
location.
2. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
No beer and wine permit may be granted unless the location of the place of business is a proper
location. S.C. Code Ann. § 61-4-520 (Supp. 2003). 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). Kearney v. Allen, 287
S.C. 324, 338 S.E.2d 335 (1985). In this case, after considering all relevant considerations, two
factors require denying the permit: proximity to churches and proximity to residences.
In examining community impact, particular attention must be paid to the proximity of the location
to churches and residences. Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992).
Indeed, an improper proximity to churches or an improper proximity to residences presents two
separate grounds 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).
As the term plainly suggests, a significant consideration in deciding when the “proximity” is
improper is determining the distance from the proposed location to the churches or residences in the
area. See Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992) (court upheld a denial
of a beer and wine permit since “[t]he store was located approximately .3 mile from a church.”).
In deciding whether the proximity is improper, the purpose and intention sought to be accomplished
by the statute is instructive. Dorchester County Dept. of Social Services v. Miller, 324 S.C. 445,
477 S.E.2d 476 (Ct.App. 1996) (cardinal rule of statutory construction is to ascertain and effectuate
the intention of the legislature).
While the General Assembly in S.C. Code Ann. § 61-4-520 (Supp. 2003) did not explicitly state the
purpose to be served by imposing a “proximity” requirement in reference to churches and residences
and other institutions and activities, courts in other states with similar laws have explained that such
a statute seeks to protect the identified institutions and activities. City of Bastrop v. Johnny's Pizza
House, Inc., 712 So.2d 156, (La.App. 2 Cir. 1998) (such statutes seek to ensure that “persons in or
entering those protected places will neither have ready access to businesses selling alcohol nor be
subjected to viewing or participating in incidents which frequently occur in and around premises
where intoxicating beverages are sold.”); Taylor Drug Stores, Inc. v. Indiana Alcoholic Beverage
Com'n, 497 N.E.2d 932 (Ind.App. 1 Dist. 1986) (such statutes are designed to create “a protective
zone from disruption associated with a ‘premises’ seeking a permit to dispense alcoholic
beverages.”); Big Bear Markets of Mich., Inc. v. Michigan Liquor Control Commission, 345 Mich.
569, 77 N.W.2d 135 (Mich. 1956) (purpose of the statute is “to protect churches and schools of the
State from detriment resulting from proximity to places of business in which intoxicating beverages
are sold.”). Obviously, determining when the degree of protection has been breached so as to
warrant denying the permit is a matter that must be decided on the individual facts of each case.
Here, the proposed location must be denied since it is within an improper proximity to churches and
residences. The area has not one but three churches in the immediate vicinity. Unity Baptist Church
is at a distance of 374 feet. In addition, the proposed location is visible from the front portion of the
property of a nearby Jehovah's Witness church and on the other side of I-26 is Mount Alexander
Baptist Church, a third church in the area. Further, a residence is 155 feet away from the location
and is directly across the street. Moreover, other residences are in the immediate area since two
housing developments are within .5 miles of the proposed location. Accordingly, on the whole, the
proposed location is not a proper one for a beer and wine permit.
IV. Order
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
DOR is directed to deny Yvonne M. Goodwin's application for an off-premises beer and wine permit
at 4225 Walnut Grove Road, Roebuck, South Carolina 29376.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: May 26, 2004
Columbia, South Carolina |
