SC Administrative Law Court Decisions

I. Statement of the Case

Douglas T. Jones (Jones) filed with the South Carolina Department of Revenue (DOR) an application for an on-premises beer and wine permit for 1687 Sandifer Boulevard in Seneca, South Carolina. In opposition to the application, protests were filed by the Beaverdam Baptist Association, Hope Creek Church, David Sluder, and the Oconee County Sheriff's Department seeking to prevent DOR from granting the application. The protestants argue that the location at which Jones seeks to utilize the permit is not a proper location for an on-premises beer and wine permit. Accordingly, the protests having been filed pursuant to S.C. Code Ann. § 61-4-525, a contested case arises 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 Jones meet the requirements for an on-premises beer and wine permit in light of an allegation that the location is improper?

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 November 21, 2003, Jones filed an application with the Department of Revenue for an on-premises beer and wine permit to be utilized at 1687 Sandifer Boulevard in Seneca, South Carolina. 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.

Two churches are nearby. When standing in the doorway of the proposed location and facing Sandifer Blvd., to the right at a distance of 605 feet when measured by normal vehicular or pedestrian routes is the building housing the Beaverdam Baptist Association. When measured in a direct line, the distance is 265 feet. Within the Beaverdam facility, the Heart Land Baptist Church holds its services. Behind the proposed location at a distance of 662 feet when measured by normal vehicular or pedestrian routes is Hope Creek Church. When measured in a direct line, the distance is 365 feet. While some vegetation is present, the proposed location's building is visible from the property of the Beaverdam Baptist Association and from the property of Hope Creek Church.

While the evidence does not identify specific past vehicular accidents at this location, the traffic configuration is problematic. The portion of the highway in front of the proposed location traverses a hill. Thus, the location presents a diminished view for traffic entering or exiting from the proposed location as well as from other businesses along that portion of the highway.

As to businesses in the area, the surrounding vicinity is predominately commercial. It is home to the businesses of the Health Life Center, Thrift Brothers General Contractors, Cobb's Gold Tee Golf Shop, an Allstate claims office, and a United Credit office. In addition, some establishments in the extended area hold beer and wine permits and liquor licenses. For example, a retail liquor store is approximately .5 miles away and a Fatz’s Restaurant with beer and wine on premises is approximately .3 miles away.

The current business use of the location is that of a nightclub providing parking facilities for approximately 100 vehicles. The location’s listed hours of operation are from 9:00 p.m. to “until.” Under past ownership, the proposed location has operated as a bar with an on-premises beer and wine permit and as a fully nude bar without a beer and wine permit but allowing patrons to bring their own beer, wine, and liquor onto the premises.

The area near 1687 Sandifer Blvd. has been the site of criminal activity. For example, vandalism has occurred on the Beaverdam property, and the vacant lot next to the Beaverdam property has been the site of extensive litter accumulation. Law enforcement officials have made DUI arrests both from and near this location in the past. Further, prior operators of the same location generated significant police intervention. Due to the presence of drugs in January 1998, the Oconee County Sheriff’s Office raided the location and made 13 drug related arrests. In addition, while operated by a prior owner, charges of performing lewd acts at the premises resulted in the arrests of the manager of the location along with four female strippers who were performing totally nude.

2. 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

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

1. Proximity to Churches

In examining community impact, particular attention must be paid to the proximity of the location to churches. Moore v. S.C. ABC Comm'n, 308 S.C. 160, 417 S.E.2d 555 (1992). Indeed, the single factor of an improper proximity to churches in the area is a proper basis by itself 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 churches 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 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. The area has not one but two churches in the immediate vicinity. The Beaverdam Baptist Association’s building is home to the Heart Land Baptist Church. That church is at a distance of 605 feet when measured by normal vehicular or pedestrian routes and is only 265 feet when measured in a direct line. Further, behind the proposed location at a distance of 662 feet when measured by normal vehicular or pedestrian routes is Hope Creek Church. When measured in a direct line, the distance is 365 feet. In addition, since Hope Creek Church is directly behind the proposed business, access to and egress from the church requires traveling a route that passes along the front and side of the proposed location. Finally, the proposed location seeks not only an on-premises permit but also seeks to use that permit in a nightclub setting. Such a use runs counter to the protective nature of the statute.

2. Law Enforcement Intervention

A second and independent basis for denying the permit is the history of law enforcement needs at the location. A proper consideration for evaluating the impact upon a community is examining the degree of law enforcement involvement. For example, a relevant consideration is whether law enforcement officers have had significant problems with 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). Here, law enforcement officials have made DUI arrests at or near this locale in the past and have received complaints from the community related to activities at the location.

Likewise, evidence exists of an improper location when law enforcement officers 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). Here, while being operated as a nightclub in the past, drug related arrests have been made and arrests for performing lewd acts at the premises have occurred.

Finally, consideration can be given to the extent to which the highway traffic presents a location that 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, the highway in front of the proposed location traverses a hill and contributes to presenting a limited view for traffic entering or exiting from the proposed location.

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. As to factors that weigh in favor of granting the permit, it is true that the surrounding area is substantially commercial. Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984). Further, it is also true that other businesses that sell beer and wine or alcohol already exist within the area. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973). However, on the whole, the past history of the need for law enforcement intervention presents a community incompatible with granting an on-premises permit to a nightclub. Moreover, and in any event, the improper proximity to the two churches in the area is a sufficient factor by itself requiring denial of the permit. Accordingly, Jones's application seeks an on-premises beer and wine permit for a location that is not a proper location.

IV. Order

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

DOR is directed to deny Douglas T. Jones and Lynda W. Jones' application for an on-premises beer and wine permit at 1687 Sandifer Boulevard in Seneca, South Carolina.

AND IT IS SO ORDERED.

_________________________________

RAY N. STEVENS

Administrative Law Judge

Dated: May 26, 2004

Columbia, South Carolina