ORDERS:
FINAL ORDER AND DECISION
I. Statement of the Case
Shannon McGaugh (McGaugh) filed with the South Carolina Department of Revenue (DOR), an
application for an on-premises beer and wine permit for Route 11 Pub & Grub, Inc. located at 5600
N. Hwy. 14, Landrum, South Carolina. Protests were filed by numerous residents of the community
seeking to prevent DOR from granting the requested permit.
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 McGaugh meets the
requirements of providing a proper location.
Protests were filed pursuant to S.C. Code Ann. § 61-4-525 resulting in a contested case before the
Administrative Law Court (ALC) under S.C. Code Ann. §§ 61-2-260 (Supp. 2003), 1-23-600(B)
(Supp. 2003) and 1-23-310 (Supp. 2003). The evidence and relevant factors require denying the on-premises beer and wine permit.
II. Issue
Does McGaugh meet the requirements for an on-premises beer and wine permit in light of an
allegation that the location is improper?
III. Analysis
A. Findings of Fact
Based on the preponderance of the evidence, the following findings of fact are entered:
On or about October 13, 2003, McGaugh filed an application with DOR for an on-premises beer and
wine permit with the application identified by DOR as AI # 32032316-4. The applicant and the
location were investigated by SLED, and the investigating agent drew a map generally depicting the
immediate area surrounding the proposed location of 5600 N. Hwy. 14, Landrum, South Carolina.
Within the immediate area is the First Baptist Church of Gowensville at a distance from the proposed
location of 690 feet . While the proposed location's building is visible from the church, the church and
the building are separated by a road and a field with the field having significant vegetation. The
church activities primarily occur on Sunday and Wednesday but activities also occur on other nights
of the week.
The area is a mixture of residences and retail businesses. The closest residence to the proposed
location is 659 feet with a second at a distance of 670 feet, and a third at 719 feet from the proposed
location. In addition to the few residences, the area is also home to a Spinx Gas Station and
Convenience Store, the Junction Home Cooking restaurant, Somebody House Antiques, and the
Gowensville Community Center.
Within the immediate area, only one beer and wine permit exists, an off-premises permit at the Spinx
Gas Station and Convenience Store. Unlike the convenience store, McGaugh’s business will utilize
an on-premises beer and wine permit. The business will operate as a restaurant providing meals and
beer and wine during lunch and dinner hours. While other foods will be served, the typical menu will
consist of hamburgers, hotdogs, onion rings, and french fries. The operation will provide seating for
approximately 75 people with that number including seating at a bar area at which patrons will receive
meals and beer and wine.
While patrons may be afforded parking at the rear of the property, primary vehicle parking will be at
the front of the building. Vehicle ingress and egress to the parking area will be from Highway 11 and
Highway 14 near the intersection of Highway 11 and Highway 14. At that intersection, the speed
limit is 40 miles per hour on both highways with a flashing red light at a four-way-stop intersection.
From the building’s front door to the center line of Highway 14 is 58 feet. Likewise, the distance
from the front door to the center line of Highway 11 is 120 feet.
Traffic along each highway includes the frequent presence of logging trucks since the route is a
normal course of transit to and from a nearby timber company. Further, the vehicle traffic count on
Highway 14 is approximately 3,600 vehicles per day and on Highway 11 is approximately 2,100
vehicles per day.
Travel along the two highways presents a history of accidents. While no fatalities or accidents are
pinpointed at the intersection here in dispute, over the length of Hwy 11 and Hwy 14 in both
Spartanburg and Greenville counties, fatalities and accidents have occurred. One fatality occurred on
Hwy 11 during 2003 and during 2004, Hwy 11 and Hwy 14 witnessed four fatalities. The 2003
fatality on Hwy 11 involved alcohol. Over that same length in both counties, during 2003, 35
accidents occurred on Hwy 11 and 230 accidents occurred on Hwy 14.
Law enforcement for the area is provided by the Greenville County Sheriff. From 7 a.m until 7 p.m.,
two deputies have responsibility for a 215 square mile area that includes the location under review.
From 7 p.m. until 7 a.m. only one deputy is assigned to the area. Due to the area covered and the
number of deputies available in the area, the typical response time by the Sheriff to an emergency call
at the location is 15 to 20 minutes.
B. Conclusions of Law
Based on the foregoing Findings of Fact, I conclude the following as a matter of law:
1. Law of Location Applied to Location Facts
Under S.C. Code Ann. § 61-4-520 (Supp. 2003), no beer and wine permit may be granted unless the
location of the place of business is a proper location. In making that determination, 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).
a. Protected Interests
A significant factor in determining whether the location of the place of business is a proper location
is that of examining the proximity of the location to residences, churches, schools, and playgrounds.
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 these activities and institutions 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).
Plainly, a nearby church, the First Baptist Church of Gowensville, opposes the granting of the permit.
As to the stance of the church in this matter, certainly, one must respect the moral grounds of an
individual or group of individuals to abstain from the purchase and consumption of alcohol and the
right not to be disturbed by those who do chose to buy and drink beer, wine, or liquor. Corwin v.
Board of Liquor Control, 164 N.E.2d 412 (Ohio 1960) ("We would not imply that an objection to
the issuance of a permit on moral grounds should be ignored by the director in determining the
advisability of issuing the permit. The opposition of many religious denominations to the sale and use
of intoxicants is a commendable one that should not be lightly regarded."). However, the suitability
of a proposed location for the sale of alcoholic beverages cannot be found wanting based only on the
religious convictions of opponents to an application. Rather, in South Carolina, the General
Assembly has made the sale of alcoholic beverages a lawful enterprise with those enterprises subject
to regulation by the State.
One aspect of that regulation is granting permits only to enterprises operating at a “proper location.”
In this case, no improper proximity exists to the First Baptist Church of Gowensville. The church
is over 600 feet from the proposed location and is separated from the location by a road and a field.
Such a distance is not so close as to warrant a denial.
In the same manner, the presence of residences in the area is not a basis for denial. Here, the closest
residences are 659 feet, 670 feet, and 719 feet from the proposed location. Further, the immediate
area is not that of a high density residential area. Thus, no improper proximity to a residential area
is shown here.
However, several other factors warrant denying the requested permit.
b. Safety and Law Enforcement Concerns
i. Safety Concerns
In appropriate circumstances, consideration must 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). Such is the case here
since a combination of factors establishes that the location presents a traffic danger for one seeking
to utilize an on-premises beer and wine permit.
Here, the location’s very limited front parking area requires parked vehicles to virtually abut the
adjacent traffic routes. Indeed, both highway Hwy 11 and Hwy 14 converge in front of the location
forming a four-way-stop intersection and presenting a building whose front door is only 58 feet from
the center line of Highway 14 and only 120 feet from the center line of Highway 11.
Compounding the traffic dangers due to inadequate front parking at the location are the degree of
traffic and the types of vehicles common to the location. For example, due to timber activities in the
area, traffic frequently includes logging trucks. In addition, the two highways are plainly not little
used routes. On the contrary, the traffic count on Highway 14 is 3,600 vehicles per day and on
Highway 11 is 2,100 vehicles per day.
Finally, the traffic danger along Hwy 11 and Hwy 14 is not a matter of conjecture but is instead a
current reality. While it is true that no evidence specifically pinpoints any fatalities or accidents at the
intersection here in dispute, it is also true that no evidence refutes or even discounts the number and
severity of accidents on the overall length of Hwy 11 and Hwy 14 in both Spartanburg and Greenville
counties. For 2003 and 2004, Hwy 11 and 14 have produced five fatalities (at least one of which
involved alcohol) and 265 accidents.
Accordingly, after considering all of the traffic safety factors (adequacy of front parking, proximity
of parked vehicles to traffic arteries, types and numbers of vehicles carried on the traffic arteries,
configuration of intersection, and history of fatalities and accidents), the location is improper due to
it being in an area that creates a traffic danger and being incompatible with the granting of an on-premises beer and wine permit.
ii. Law Enforcement Concerns
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 location. Fowler v. Lewis, 260 S.C. 54, 194
S.E.2d 191 (1973).
Here, police protection is provided by the Greenville County Sheriff. Essentially, during daylight
hours, two deputies patrol a 215 square mile area that includes McGaugh’s location. However, at
night only one deputy is available. Further, the typical response time by the Sheriff for an emergency
call from the location is 15 to 20 minutes. Thus, the addition of an on-premises beer and wine permit
presents a further demand on an already strained police coverage for the area and warrants denying
the permit.
c. Similar Businesses and Permits
A denial of the permit due to safety and law enforcement concerns is bolstered by the general
character of the immediate area. For example, a valid consideration in reviewing a permit is whether
the surrounding area is substantially commercial and whether other similar businesses already sell beer
and wine or alcohol within the area.. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973);
Ronald Byers v. S.C. Alcoholic Beverage Control Comm'n,, 281 S.C. 566, 316 S.E.2d 705 (Ct.
App. 1984).
In the instant case, the immediate area has only one beer and wine permit and that is an off-premises
permit at the Spinx Gas Station and Convenience Store. The only other food preparation business
in the area, the Junction Home Cooking restaurant, does not serve beer and wine. In addition, the
other businesses in the area (Somebody House Antiques and the Gowensville Community Center) do
not lend themselves to being outlets for beer and wine. Thus, granting the permit would change the
character of the neighborhood since the surrounding area is not substantially commercial and no other
on-premises businesses already sell beer and wine or alcohol within the area.
2. 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. While the proposed location is not within an improper
proximity to residences, schools, churches, and playgrounds, the permit must be denied as not
presenting a proper location due to safety and law enforcement concerns and due to the area not
being substantially commercial and not having other similar businesses present. S.C. Code Ann. § 61-4-520 (Supp. 2003). Accordingly, McGaugh'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 Shannon McGaugh's application for an on-premises beer and wine permit
at 5600 N. Hwy. 14, Landrum, South Carolina.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: July 15, 2004
Columbia, South Carolina |